READINGS 


ON  THE 


History  and  System  of  the 
Common  Law 


COMPILED   BY 

ROSCOE    POUND 

Story  Professor  of  Law  in  Harvard  University 


SECOND  EDITION 


BOSTON 

THE  BOSTON  BOOK  COMPANY 

1913 


Copyright,  1913 
By  ROSCOE  pound 


The  Riverdale  Press,  Brookline,  Mass.,    U.S.A. 


PREFACE  TO  THE  SECOND  EDITION 


In  1899  I  was  called  on  to  give  a  course  in  the  history 
and  system  of  our  law  for  college  students.  After  some 
experimenting  with  lectures  and  an  outline  of  prescribed 
readings,  it  seemed  desirable  to  have  extracts  from  the 
sources  referred  to  and  some  other  materials  before  the 
student  in  the  lecture  room  in  such  form  as  to  serve  not 
merely  for  illustration  but  as  the  basis  for  class  discus- 
sion. Accordingly,  a  short  compilation  of  extracts  was 
made  which  has  gradually  expanded  into  the  present 
book.  For  some  years  the  extracts  were  mimeographed 
and  given  out  in  parts.  Thus  it  was  possible  to  make 
changes  and  additions  from  year  to  year  until  in  1904  the 
increased  numbers  taking  the  course  required  that  the 
readings  be  put  in  print.  Accordingly,  the  first  edition, 
published  in  that  year,  represented  the  original  nucleus 
as  shaped  and  in  parts  made  over  by  experience  of  five 
years  of  use.  Subsequently  notes  were  kept  of  changes  in 
and  additions  to  the  first  edition  which  appeared  desir- 
able, and  after  I  ceased  to  teach  the  subject  others  who 
used  the  book  made  further  suggestions.  The  first  edi- 
tion having  been  exhausted,  the  compilation  has  been 
completely  revised  in  the  light  of  these  notes  and  sugges- 
tions. But  it  still  follows  the  lines  and  in  the  main 
embodies  the  contents  of  the  mimeograph  compilation 
of  1899. 

Primarily  the  purpose  of  these  readings  is  to  provide  in 
convenient  form  materials  which  may  serve  as  a  basis 
for  discussion  in  class  and  for  lectures  and  explanations 
which,  unless  the  matter  is  before  the  student  at  the 


iv  '  PREFACE 

moment,  would  be  abstract,  if  not  unintelligible.  The 
first  edition  has  been  used  also  by  first-year  students  in 
law  schools  who  desire  a  survey  of  the  history  of  the 
common  law,  and  some  preliminary  view  of  its  system. 
The  needs  of  such  students  have  been  taken  into  account. 
But  those  who  use  the  book  in  this  way  are  recom- 
mended to  read  the  first  part  of  Pollock's  First  Book 
of  Jurisprudence  in  connection  with  the  first  chapter, 
Jenks's  Short  History  of  English  Law  in  connection  with 
the  second  chapter,  the  second  part  of  Pollock's  First 
Book  of  Jurisprudence  in  connection  with  the  third 
chapter,  Warren's  History  of  the  American  Bar  in  con- 
nection with  the  fourth  chapter,  and  Holland's  Elements 
of  Jurisprudence  or  Salmond's  Jurisprudence  in  connec- 
tion with  chapters  eight  to  twelve. 

In  using  such  a  compilation  certain  cautions  are 
required.  One  who  uses  it  should  have  a  teacher  or  else 
should  read  with  his  eyes  open  and  think  critically  as  he 
reads.  In  the  first  place,  the  extracts  are  not  always  in 
accord  with  each  other  or  with  the  ideas  the  editor  has 
expressed  in  the  insertions  in  smaller  type.  Perhaps  it 
need  not  be  said  that  choice  of  extracts  proceeding  on 
different  theories  has  often  been  made  deliberately  in 
order  to  provoke  thought  and  inquiry.  Again,  the  his- 
torical material  in  the  extracts  from  Blackstone  and 
Kent  must  often  be  taken  with  caution  and  sometimes 
is  valuable  only  as  showing  the  ideas  of  legal  history 
which  governed  legal  thinking  in  a  past  generation. 
Moreover,  the  apocryphal  reasons  given  by  Blackstone 
and  his  imitators  for  doctrines  which  rest  on  historical 
grounds  only  must  be  scrutinized  carefully.  Where 
experience  has  shown  that  false  impressions  are  likely  to 
be  formed  which  reading  or  instruction  will  not  readily 
remove,  notes  have  been  inserted  to  challenge  the  atten- 
tion of  the  student  at  once.      But  without  such   notes, 


PREFACE  V 

the  reader  should  weigh  all  statements  by  his  knowledge 
of  history,  philosophy,  ethics  and  the  social  sciences. 

What  has  been  said  as  to  the  purpose  of  the  compila- 
tion and  the  manner  of  its  origin  and  growth  will  suffice 
to  explain  its  contents.  The  historian  may  well  wonder 
that  some  things  are  included  and  others  excluded.  As 
to  these,  the  test  of  use  in  class  has  seemed  to  show  what 
was  best  adapted  to  provoke  profitable  discussion.  But 
little  has  been  included  as  to  the  history  of  particular 
departments  and  particular  doctrines,  since  here,  espe- 
cially in  the  law  of  property,  histor}-  is  a  necessary  part 
of  the  ordinary  dogmatic  instruction.  With  more  rea- 
son, the  jurist  may  say  that  the  system  is  very  scanty. 
No  system  is  attempted  in  the  law  of  torts,  and  elsewhere 
an  elementary  outline  only  is  suggested.  More  than  this 
seems  unprofitable  for  beginners,  since  system,  to  be 
apprehended,  must  come  after  the  student  has  some 
concrete  materials  with  which  to  fill  it  out. 

Perhaps  an  apology  is  due  for  making  use  of  the  trans- 
lation of  Bracton  in  Twiss'  edition.  Until  Bracton's 
text  is  settled,  it  can  hardly  be  profitable  to  make  trans- 
lations of  one's  own.  But  the  unwary  should  be  referred 
to  Professor  Vinogradoff's  paper  in  1  Law  Quarterly 
Review,  189. 

Grateful  acknowledgment  is  made  to  the  authors  and 
publishers  who  have  generously  permitted  the  use  of 
extracts  from  modern  books.  Every  one  who  has  to  do 
with  either  the  history  or  the  system  of  our  law  is  under 
a  debt  to  Professor  Wigmore.  Beyond  this,  however, 
I  am  indebted  to  him  for  several  important  suggestions. 
My  colleague.  Professor  Joseph  Warren,  and  Professor 
H.  W.  Humble,  of  the  University  of  Kansas,  have  also 
assisted  by  valuable  criticisms. 

ROSCOE    POUND. 

Cambridge,  October  1,  1912. 


ENCOMIA   ON   THE   COMMON   LAW 


For  the  English  Laws,  although  not  written,  may,  as  it  should  seem,  and  that 
without  any  absurdity,  be  termed  Laws.  .  .  .  For,  if  from  the  mere  want  of 
writing  only,  they  should  not  be  considered  as  Laws,  then,  unquestionably, 
writing  would  seem  to  confer  more  authority  upon  Laws  themselves,  than  either 
the  Equity  of  the  persons  constituting,  or  the  reason  of  those  framing  them. 
—  Glanvili,  Preface  (1187). 

The  realm  of  England  was  first  inhabited  by  the  Britons;  afterwards  it  was 
ruled  and  civilized  under  the  government  of  the  Romans;  then  the  Britons  pre- 
vailed again;  next  it  was  possessed  by  the  Saxons,  who  changed  the  name  of 
Britain  into  England.  After  the  Saxons,  the  Danes  lorded  it  over  us,  and 
then  the  Saxons  prevailed  a  second  time;  at  last  the  Normans  came  in, 
w'hose  descendants  retain  the  kingdom  at  this  day:  and  during  all  that  time, 
wherein  those  several  nations  and  their  kings  prevailed,  England  has  nevertheless 
been  constantly  governed  by  the  same  customs  as  it  is  at  present:  which  if  they 
were  not  above  all  exception  good,  no  doubt  but  some  or  other  of  those  kings, 
from  a  principle  of  justice,  in  point  of  reason,  or  moved  by  inclination,  would 
have  made  some  alteration,  or  quite  abolished  them.  ...  So  that  there  is  no 
pretence  to  say,  or  insinuate  to  the  contrary,  but  that  the  laws  and  customs  of 
England  are  not  only  good,  but  the  very  best.  —  Fortescue,  De  Laudibus  Legum 
Angliae,  cap.  17  (about  1453). 

And  it  is  to  be  noted  that  all  the  deriving  of  reason  in  the  law  of  England 
proceedeth  of  the  first  principles  of  the  law,  or  of  something  that  is  derived  of 
them;  and  therefore  no  man  may  right-wisely  judge,  ne  groundly  reason  in  the 
laws  of  England  if  he  be  ignorant  in  the  first  principles.  —  Doctor  and  Student, 
chap.  5  (1523). 

For  reason  is  the  life  of  the  law,  nay  the  common  law  itselfc  is  nothing  else  but 
reason;  which  is  to  be  understood  of  an  artificiall  perfection  of  reason,  gotten  by 
long  study,  observation,  and  experience,  and  not  of  every  man's  naturall  reason; 
for,  nemo  fiascittir  art'fex.  This  legall  reason  est  summa  ratio.  And  therefore  if 
all  the  reason  that  is  dispersed  into  so  many  severall  heads,  were  united  into  one, 
yet  could  he  not  make  such  a  law  as  the  law  in  England  is;  because  by  many 
successions  of  ages  it  hath  beene  fined  and  refined  by  an  infinite  number  of  grave 
and  learned  men,  and  by  long  experience  growne  to  such  a  perfection,  for  the 
government  of  this  realme,  as  the  old  rule  may  be  justly  verified  of  it,  neminem 
opportet  esse  sapientiorem  legihus:  no  man  out  of  his  own  private  reason  ought 
to  be  wiser  than  the  law,  which  is  the  perfection  of  reason.  —  Coke  on  Littleton,  97h 
(1628). 


viii  ENCOMIA  ON  THE  COMMON  LAW 

Whereupon  the  deputies  so  appointed  being  now  assembled  in  a  full  and  free 
representation  of  these  colonies,  taking  into  their  most  serious  consideration  the 
best  means  of  attaining  the  ends  aforesaid,  do  in  the  first  place,  as  Englishmen, 
their  ancestors,  in  like  cases  have  usually  done,  for  asserting  and  vindicating 
their  rights  and  liberties  declare.  .  .  . 

5.  That  the  respective  colonies  are  entitled  to  the  common  law  of  England, 
and  more  especially  to  the  great  and  inestimable  privilege  of  being  tried  by  their 
peers  of  the  vicinage,  according  to  the  course  of  that  law. 

6.  That  they  are  entitled  to  the  benefit  of  such  of  the  English  statutes  as 
existed  at  the  time  of  their  colonization;  and  which  they  have,  by  experience, 
respectively  found  to  be  applicable  to  their  several  local  and  other  circumstances. 
—  Declaration  of  Rights  of  the  Continental  Congress  (1774). 

You  shall  understand  how  great  a  heritage  is  the  law  of  England,  whereof  we 
and  our  brethren  across  the  ocean  are  partakers,  and  you  shall  deem  treaties 
and  covenants  a  feeble  bond  in  comparison  of  it;  and  you  shall  know  with  cer- 
tain assurance  that,  however  arduous  has  been  your  pi?grimage,  the  achievement 
is  a  full  answer.  So  venerable,  so  majestic,  is  this  living  temple  of  justice,  this 
immemorial  and  yet  freshly  growing  fabric  of  the  Common  Law,  that  the  least 
of  us  is  happy  who  hereafter  may  point  to  so  much  as  one  stone  thereof  and  say, 
The  work  of  my  hands  is  there.  —  Pollock,  Oxford  Lectures,  111. 


CONTENTS 


Page 

Encomia  on  the  Common  Law   v 

I.     Fundamental  conceptions 1 

Justice    1 

Law 3 

Law  and  morals    13 

IL     History  of  the  Common  Law 26 

L    English  law  before  the  Conquest  28 

Glossary 36 

2.        The  development  of  the  common  law 37 

(a)  The  king's  peace    37 

(b)  The  king's  writ    42 

(c)  State  law  and  church  law 44 

(d)  The  king's  courts 58 

(e)  The  custom  of  the  realm    86 

(f)  Precedents  and  case  law 97 

(g)  The  jury 103 

i.  Archaic  modes  of  trial 103 

ii.  Development  of  the  jury 110 

(h)  The  supremacy  of  law    145 

'         3.   The  development  of  equity 156 

4.  The  law  merchant    181 

5.  The  reform  movement 195 

III.     Sources  and  Forms  of  Law   210 

Legislation 211 

Judicial  decisions    227 

Books  of  authority 252 

IV.     The  Common  Law  in  America 262 

1.  Reception 262 

2.  Sources  and  forms    270 

V.     Courts:  their  Organization  and  Jurisdiction 305 

1.  Self-help 305 

2.  Courts  in  general    318 

3.  Jurisdiction 335 

VI.     The  Common-law  Actions 349 

Scheme  of  the  common-law  actions 349 

VII.     The  Elements  of  Procedure 364 

1.  At  law 364 

2.  In  equity    399 

VIII.     Rights 410 

Scheme  of  rights  in  Anglo-American  law   420 


K  CONTENTS 

Epge 

IX.     Persons 428 

1.  When  docs  existence  begin  legally?  428 

2.  Civil  death 431 

3.  Capacity 433 

4.  Infancy 434 

5.  Coverture 437 

6.  Lunacy,  idiocy    444 

7.  Conviction  of  felony 445 

8.  Alienage 446 

9.  Juristic  persons 448 

X.     Acts 453 

1.  Representation  in  acts 454 

2.  Legal  transactions    456 

(a)  Form 457 

(b)  Grounds  of  avoidance 462 

(i)   Duress  and  undue  influence 462 

(ii)  Fraud  466 

(iii)  Mistake 468 

(c)  Qualifications 471 

(i)  Conditions    471 

(ii)  Time 477 

3.  Torts 479 

XL     Obligations 505 

1.  Obligations  arising  from  legal  transactions    508 

(a)  Contracts    512 

(i)  Formal  —  specialties 514 

(ii)   Real  —  debt,  bailment    521 

(iii)  Simple .   533 

(b)  Express  trusts    542 

2.  Obligations  arising  from  ofiftce  or  calling    553 

3.  Obligations  arising  from  fiduciary  relations 556 

4.  Obligations  arising  from  unjust  enrichment 558 

5.  Assignment    561 

6.  Extinction  of  obligations 563 

XII.     Property •'  •  566 

1.  Nature  of  property  and  possession    566 

2.  Things  incapable  of  ownership 570 

3.  Kinds  of  property 571 

4.  Tenure   576 

5.  Estates  582 

6.  Co-ownership 594 

7.  Incidents  of  ownership 600 

8.  Rights  in  another's  property    004 

Scheme  of  rights  in  another's  property  in   Anglo-American 
law    : 605 

9.  Acquisition  of  property   608 

Scheme  of  modes  of  acquisition  in  Anglo-American  law  ....   608 
10.    Succession    619 


TABLE   OF  CASES  AND  AUTHORITIES 


Page 
Abbot  Faritius  i'.  Jordan  de  Sackville  (Bigelow,  Placita  Anglo-Normannica, 

99)    43 

Abbot  of  Abingdon  v.  Men  of   Stanton   (Bigelow,  Placita  Anglo-Norman- 
nica, 89)    42 

Abbot  of  St.  Augustine's  Case  (Bigelow,  Placita  Anglo-Normannica,  33).  .    110 
Abbot  of  St.  Edmund  v.  Abbot  of  Peterborough  (Bigelow,  Placita  Anglo-Nor- 
mannica, 32) 42 

Adams,  John,  Novanglus  264 

Alder  v.  Keighley  (15  M.  &  W.  117)    136 

Alfred  and  Guthrum's  Peace 31 

Alfred,  Laws  of    30,  37 

Ames,  Cases  on  Bills  and  Notes 520 

Ames,  History  of  Assumpsit  (2  Harvard  Law  Review,  1)    538 

Ames,  Law  and  Morals  (22  Harvard  Law  Review,  97)    459 

Ames,  Specialty  Contracts  and  Equitable  Defenses  (9  Harvard  Law  Review, 

49) 463,  466,  519 

Amos,  Science  of  Law 13 

Anglo-Saxon  Laws,  Oaths 107 

Anonymous  Case,  Common  Pleas,  1293  (Y.  B.  21  &  22  E.  I,  273)    123 

Anonymous  Case,  Common  Pleas,  1341  (Y.  B.  15  E.  3,  56) 99 

Anonymous  Case,  Common  Pleas,  1462  (Y.  B.  2  E.  4,  27) 100 

Anonymous  Case,  Common  Pleas,  1465  (Y.  B.  4  E.  4,  8) 160 

Anonymous  Case,  Common  Pleas,  1514  (1  Dyer,  37b)  127 

Anonymous  Case,  Common  Pleas,  1537  (1  Dyer,  14a) 100 

Anonymous  Case,  Common  Pleas,  1562  (2  Dyer,  21Sa) 131 

Anonymous  Case,  Common  Pleas,  1579  (3  Dyer,  364?;)   131 

Anonymous  Case,  King's  Bench  1338  (Y.  B.  Hil.  14  E.  3,  54)   149 

Anonymous  Case,  Lib.  Assisarum,  41,  11,  1367 123 

Anson,  Contracts 506 

Appellate  Jurisdiction  Act,  1876 81 

Appilgarth  v.  Sergeantson  (Cal.  Proc.  Chan.  I,  xli) 159 

Athelstan,  Judicia  Civitatis  Lundoniae  of 34 

Athelstan,  Laws  of   31,  35 

Attorney-General  v.  Lum  (2  Wis.  507)    230 

Aud  V.  Magruder  (10  Cal.  282) 234 

Austin,  Jurisprudence 414 

Baron,  Text  Book  of  the  Modern  Roman  Law    608 

Bertholf  v.  O'Reilly  (74  N.  Y.  509)    18 

Bigelow,  History  of  Procedure  in  England 103 

Birmingham  v.  Allen  (6  Ch.  Div.  284) 603 

Bispham,  Principles  of  Equity    557 


xii  TABLE  OF    CASES 

Blackstone,  Commentaries,  I.  Page 

41,  Law  of  nature    15 

44-46,  Laws  in  general     3 

59-61,  Interpretation    22 

63,  Unwritten  law 211 

67,  Laws  of  England 86 

69,  Precedents    • 101 

69-72,  Judicial  decisions,  precedents    227 

75,  Law  merchant 183 

76,  Customs    297 

82,  Canon  law    278 

85-91,  Written  law,  statutes 212 

129-140,  Rights  in  rem 420 

130,  Beginning  of  legal  existence 428 

130-131,  Duress 463 

132,  Civil  death 431 

304,  Lunacy   444 

429-432,  Representation 454 

442,  Coverture  437 

464,  Infancy  434 

Blackstone,  Commentaries,  II. 

14—15,  Things  incapable  of  ownership 570 

15-19,  20-21,  384r-i87,  Thmgs  real  and  things  personal 571 

59-60,  Tenure 576 

62-63,  78-79,  Knight-service  and  socage 579 

103-107,  Estates    582 

120-121,  126-127,  129,  140,  143-144,  150,  Estates 588 

.  122-123,  Tenant  for  life  602 

154-157,  Estates  on  condition 471 

163-165,  Remainders    593 

179-181,  184-5,  186-9,  191-3,  194,  Co-ownership   594 

198-199,  Disseisin 611 

201,  Succession 619 

310-311,  348,  357-360,  Feoffment    615 

374-375,  Alienation  by  devise  622 

401-405,  Acquisition  of  property 609 

440-441,  Grants 613 

442,  Assignment 561 

468,  Bill  of  exchange 562 

510-513,  Administration 623 

Blackstone,  Commentaries,  III. 

18,  Redress  by  law 315 

2,  15,  Redress  by  mere  act  of  parties 305 

22,  Courts 318 

55,  57,  Courts  of  common  law  and  equity 71 

117,  Actions  at  common  law 350 

119-128,  Wrongs  or  injuries 483 

139-143,  Injuries  to  the  person 490 

145-154,  Injuries  to  personal  property 497 


TABLE  OF  CASES  xiii 

Blackstone,  Commentaries,  III  —  {continued)  Page 

154-157,  Express  contracts 515 

165,  Action  of  deceit 490 

208-215,  Trespass   500 

267,  Eulogy  of  English  procedure 196 

272,  Original  writ 43 

275,  Law-terms,  duration 325 

279,  Elements  of  procedure 366 

434,  436,  Law  and  equity 177 

442,  Suit  in  chancery    399 

Blackstone,  Commentaries,  IV. 

380,  388,  Attainder  445 

442,  Improvement  of  laws  of  England 197 

Blades  V.  Higgs  (11  H.  L.  Cas.  631) 603 

Blair  v.  State  Bank  of  Illinois  (8  Mo.  313)   344 

Bloom  V.  Richards  (2  Ohio  St.  387) 275 

Bole  V.  Horton,  Common  Pleas,  1670  (Vaughan,  360) 101 

Bonham's  Case,  Common  Pleas,  1610  (8  Rep.  118a)    16 

Bouvier,  Law  Dictionary   19 

Bowler  v.  Eldredge  (18  Conn.  1) 308 

Bracton,  I. 

Chap.  1,  §  2  Custom  of  the  realm    88 

Chap.  2,  §  3  Precedents 98 

Ill,  Chap.  1,  §§  1,  2,  The  jury   66 

Chap.  7,  §  2  The  king's  courts    99 

Chap.  13,  §  12   115 

-IV,  Chap.  9,  §§  1-6  The  jury  117 


Brewington  v.  Lowe  (1  Ind.  21)    345 

Britton  I,  Chap.  1,  The  king's  courts    67 

Chap.  5,  The  jury 123 

Chap.  12,    Duress 462 

Broom,  Legal  Maxims 601 

Brougham,  Lord,  Speeches 198 

Buller  V.  Crips  (6  Mod.  29) 182 

Burn,  Ecclesiastical  Law    47 

Burt  V.  Powis  (16  How.  Pr.  289) 239 

Bushel's  Case  (Vaughan,  135) 132 

Butler,  Note  to  Coke  on  Littleton 578 

Caldwell  v.  Gale  (11  Mich.  77) 241 

Campbell,  Lord,  Lives  of  the  Chief  Justices 186 

Capitulary  of  Louis  I,  King  of  the  Franks 110 

Carter,   Early  History  of  the  Law  Merchant  in  England   (17  Law  Quar. 

Rev.  232)    181 

Cathcart  v.  Robinson  (5  Pet.  264)    288 

Caudrey's  Case  (5  Rep.  la) 53 

Century  of  Law  Reform 203 

Charter  of  the  Province  of  Massachusetts  Bay    264 

Christian's  note  to  1  Bl.  Comm.  75 185 


xiv  TABLE  OF  CASES 

Page 

City  of  London  v.  Wood  (12  Mod.  669)    17 

Clarendon,  Constitutions  of 50 

Cnut,  Laws  of    34 

Cnut,  Secular  Dooms  of 39 

Coggs  V.  Bernard  (2  Ld.  Raym.  909)   525 

Cohens  V.  Virginia  (6  Wheat.  265) 246 

Coke,  Second  Institute 147 

Coke,  Fourth  Institute 69,  157,  164 

Coke  on  Littleton. 

4o  Land 601 

226  Reversions  593 

155a  The  jury 132 

Combe  v.  Pitt  (3  Burr.  1423) 477 

Conference  between  King  James  I  and  the  Judges  of  England  (12  Rep. 63)  152 

Constitutions  of  Clarendon    50 

Constitution  of  Massachusetts    348 

Cooley,  Note  to  Blackstone,  II,  198-199 611 

Covenant,  Writ  of  354 

Cross  V.  Burke  (146  U.  S.  82)   248 

Crump  V.  Morgan  (3  Ired.  Eq.  91) 280 

Danz,  Lchrbuch  der  Geschichte  des  romischen  Rechts 514 

Darcy  v.  Allen  (Moore,  671)    151 

Debt,  Writ  of 353 

Declaration  of  Rights  of  Continental  Congress    265 

Den  d.  Bayard  v.  Singleton  (1  Martin,  N.  C.  42)    154 

Denison  z;.'Smith  (33  Mich.  155)    334 

Detinue,  Writ  of    354 

Dewhurst  v.  Coulthard  (3  Dal.  409) 342 

Dialogus  de  Scaccario 62 

Dicey,  Lectures  on  the  Relation  between  Law  and  Public  Opinion  in  Eng- 
land       198,  207,  209,  439 

Dicey,  Law  of  the  Constitution    .- 145 

Dietrich  v.  Northampton  (138  Mass.  14)    429 

Digby,  History  of  the  Law  of  Real  Property 611 

Dillon,  Laws  and  Jurisprudence  of  England  and  America 27,  102,  201 

Doctor  and  Student,  Dialogue  II,  chap.  2    26 

Dodd  V.  Browning  et  al.     (Cal.  Proc.  Chan.  I,  xiii) 159 

Eadwine  v.  Eanwcne  (Essays  in  Anglo-Saxon  Law,  365)   35 

Earl  of  Oxford's  Case  (1  Rep.  in  Chan.  1)    168 

Ecclesiastical  Courts,  Statutes  of  1857,  Abolishing  Civil  Jurisdiction  of  ...  .      54 

Edgar,  Ordinance  of  the  Hundred    31,  35 

Edgar,  Secular  Ordinance  of ■ 32,  158 

Edward  the  Confessor,  Laws  of 39 

Ejectment,  Writ  of  Ejcctione  Firmae 352 

Ejectione  F"irmae,  Writ  of   352 

Embrey  v.  Owen  (6  Ex.  353)  603 

Ethelbert,  Laws  of 28,  37 


TABLE  OF  CASES  xv 

Page 

Ethelred,  Laws  of    39 

Etting  V.  Bank  of  U.  S.  (11  Wheat.  59) 233 

Fable  v.  Brown  (2  Hill.  Eq.  (S.  C.)  378)  289 

Fitzherbert,  Natura  Brevium    352 

Florida  C.  R.  Co.  v.  Schutte  (103  U.  S.  118)    247 

Flournoy  v.  City  of  Jeffersonville  (17  Ind.  169)   327 

Fortescue,  De  Laudibus  Legum  Angliae 124,  150 

Fox  V.  Hoyt  (12  Conn.  491) 331 

Frauds  and  Perjuries,  Statute  of 457 

Gareis,  Science  of  Law 448 

Gee  V.  Pritchard  (2  Swanst.  402)    176 

Glanvill,  De  Legibus  et  Consuetudinibus  Regni  Angliae  43,  61,  88,  108,  111,  113 

Goodwin,  Equity  of  the  King's  Court  before  the  Reign  of  Edward  I    158 

Goodwin  V.  Robarts  (L.  R.  10  Ex.  337) 188 

Gray,  Horace,  Note  to  Quincy's  Reports    265 

Gray,  Nature  and  Sources  of  Law   8 

Grignon  v.  Astor  (2  How.  319)    329 

Guthrum,  Alfred  and.  Peace  of 31 

Habana,  Paquete  (175  U.  S.  677) 284 

Hargrave,  Law  Tracts,  Replication  of  a  Serjaunte    162 

Harriman,  Contracts 533 

Harvey  v.  DeVVoody  (18  Ark.  252) 313 

Haynes,  Outlines  of  Equity 167,  466,  468 

Haywood  v.  Cope  (25  Beav.  140)   19 

Hearn,  Theory  of  Legal  Duties  and  Rights  t479,  600,  604 

Heath  v.  Rydley  (Crokc's  James  335) 165 

Hicks  V.  Hotchkiss  (7  Johns.  Ch.  297) 245 

Hixt  V.  Goats  (1  Rolle  257) 135 

Hobart  v.  Hobart  (45  la.  501) 327 

Holcomb  V.  Bonnell  (32  Mich.  6) 250 

Holdsworth,  History  of  English  Law 58 

Holland,  Elements  of  Jurisprudence  6,  97,  415,  418,  419,  433,  454,  456,  505,  512, 

563 

Holmes,  Common  Law 517 

Hunt  V.  Hunt  (72  N.  Y.  217)    337 

In  re  Hallett's  Estate  (13  Ch.  D.  696) 180 

Ine,  Laws  of 34,  37 

Institutes  of  Justinian,  1,1    1 

James  I,  Conference  between  .  .  .  and  the  Judges  of  England  (12  Rep.  63)   152 

Jefferys  v.  Boosey  (4  H.  L.  C.  815)    90 

Jenks,  Law  and  Politics  in  the  Middle  Ages 7 

Jennison  v.  Kirk  (98  U.  S.  453) 293 

Johnson  v.  Fall  (6  Cal.  359) 230 

Judicia  Civitatis  Lundoniae 34 

Justinian,  Institutes  of,  I,  1 1 


xvi  TABLE  OF  CASES 

Page 

Kant,  Rechtslehre  1 

Kent,  Commentaries,  I. 

454-468,  Statutes 217 

472,  The  common  law 270 

499,  Books  of  authority 252 

II,  53,  61,  63,  Aliens  446 

268,  273,  274,  Corporations 449 

468,  492-3,  Sales 614 

634-5,  636-7,  Common-law  liens 606 

IV,  14,  Estates  tail    587 


361,  Joint-tenancy 599 

King  V.  Edwards  (1  Mont.  235)    293 

Kreitz  v.  Behrensmeyer  (149  111.  59)    287 

Langbridge's  Case  (Y.  B.  Hil.  19  E.  3)   89 

Langdell,  Brief  Survey  of  Equity  Jurisdiction 542 

Langdell,  Summary  of  Contracts 473,  521,  536 

Le  Barron  v.  Le  Barron  (35  Vt.  365)   281 

Leach  v.  Perkins  (17  Me.  462) 299 

Lebanon  Bank  v.  Mangan  (27  Pa.  St.  452) 241 

Leges  Edwardi  Confessoris 39 

Lester  v.  Garland  (15  Ves.  248) 477 

Lindsay  v.  Lindsay  (47  Ind.  283) 235 

Littleton,  Tenures 586,  593 

Loan  Association  v.  Topeka  (20  Wall.  655) 16 

Louis  I.,  King  of  the  Franks,  Capitulary  of  110 

Lucy,  The  (8  Wall.  307) 341 

McDowell  V.  Oyer  (21  Pa.  St.  417) 231 

Magna  Carta    67,  146 

Maine,  Ancient  Law 156 

Maitland,  Equity 172,  544,  558 

Maitland,  Prologue  to  a  History  of  English  Law  (14  Law  Quar.  Rev.  13) ...     44 

Malan  v.  Simpson  (20  How.  Pr.  488) 237 

Margaret  Appilgarth  v.  Thomas  Sergeantson  (Cal.  Proc.  Chan.  I,  xli) 159 

Markby,  Elements  cf  Law 95,  419,  428,  566 

Marsden  v.  Soper  (11  Ohio  St.  503)   340 

Massachusetts,  Constitution  of 348 

Massachusetts,  Practice  Act    361 

Massachusetts  Bay,  Charter  of  Province  of 264 

Mathewson  v.  Phoenix  Iron  Foundry  (20  Fed.  281) 290 

Meng  V.  Coffee  (67  Neb.  500) 272 

Mirehouse  v.  Rcnnell  (1  CI.  &  F.  527) 101 

Mirror  of  Justices    : 90,  122 

Mitford,  Pleadings  in  Chancery    158 

Moore  v.  Shcnk  (3  Pa.  St.  1) 312 

Moses  V.  Macferlan  (2  Burr.  1005) 558 

Nash  V.  Harrington  (2  Aiken  9)    283 


TABLE  OF  CASES  xvii 

Page 

Negotiable  Instruments  Law,  §  1   520 

§§51,  52 562 

New  York  Code  of  Ci\il  Procedure,  §  69    360 

§§  111,  112 562 

New  York  Domestic  Relations  Law,  §§  50,  51 443 

New  York  Real  Property  Law,  §  32    587 

§  66    599 

§§241-2 618 

Niboyet  v.  Niboyet  (1  P.  D.  1) 56 

Norris  v.  Clinkscales  (47  S.  C.  488)    19 

Ordinance  of  the  Hundred  of  Edgar    31,  35 

Osgood  V.  Blackmore  (59  111.  261) 330 

Paquete  Habana  (175  U.  S.  677)    284 

Parker  v.  Pomeroy  (2  Wis.  112)    241 

Patterson  v.  Winn  (5  Pet.  233)   284 

Paulsen,  Ethics   , 2,  410 

People  V.  Speir  (77  N.  Y.  144) 465 

Pollock,  Contracts 518 

Pollock,  English  Law  before  the  Norman  Conquest  (14  Law  Quar.  Rev.  291)  28,  32 

Pollock,  First  Book  of  Jurisprudence 2,  14 

Pollock,  The  King's  Peace  (Oxford  Lectures) 40 

Pollock,  The  Law  of  England,  I-L  Victoriae  (3  Law  Quar.  Rev.  643) 198 

Pollock  &  Maitland,  History  of  English  Law 351 

Pomeroy,  Code  Remedies 361 

Powell  V.  Brandon  (24  Miss.  343) 274 

Pratt  V.  Brown  (3  Wis.  603)    232 

Presbury  v.  Hull  (34  Mo.  29)    445 

Prior  of  Castleacre  v.  The  Dean  of  St.  Stephens  (Y.  B.  21  H.  7,  1) 150 

Prior  of  Lewes  v.  The  Bishop  of  Ely  (Y.  B.  32  E.  1)    99 

Prohibitions  del  Roy,  Case  of 152 

Raney  v.  McRae  (14  Ga.  589) 340 

Ravencroft  v.  Eyles  (2  Wilson  294)    135 

Reginald  de  Nerford's  Case  (Y.  B.  Hil.  14  E.  3,  54) 149 

Reinsch,  The  English  Common  Law  in  the  Early  American  Colonies  (Bull. 

Univ.  Wis.,  Hist,  series,  II,  No.  4) 262 

Replication  of  a  Serjaunte  at  the  Lawes  of  England  (Hargrave,  Law  Tracts 

323)    162 

Report  of  Commissioners  on  reducing  to  a  written  code  the  common  law  of 

Massachusetts    91 

Resolve  of  General  Court  of  Massachusetts  Bay,  1636 264 

Russell's  Case  (Y.  B.  22  E.  4,  37)    161 

Salmond,  First  Principles  cf  Jurisprudence 24 

Salmond,  Jurisprudence,     §5    6 

§31    210 

§72 416 

§  106   568 

§§  121-123     508 


xviii  TABLE  OF  CASES 

Page 

Scaccario,  Dialogus  de    62 

Secular  Dooms  of  Cnut    39 

Secular  Ordinance  of  Edgar 32,  158 

Sedgwick,  Damages 136 

Selden,  Table  Talk  (tit.  Equity) 170 

Sharswood's  note  to  Blackstone  I,  59-61    24 

Sheldon  v.  Newton  (3  Ohio  St.  494)  335 

Shelton  v.  Hamilton  (23  Miss.  496)    242 

Sim's  Case  (7  Cush.  285)   243 

Smith,  Elementary  View  of  Proceedings  in  Action  at  Law 72,  364,  370 

Smith,  Personal  Property    600,  612,  621 

Smith  V.  County  Commissioners  of  Jefferson  Co.  (10  Col.  17)    478 

Smoot  V.  Lafferty  (2  Gilm.  383)    244 

Snell,  Principles  of  Equity 435 

Sohm,  Institutes  of  Roman  Law 20 

Spaulding  v.  Chicago  &  N.  W.  R.  Co.  (30  Wis.  Ill) 285 

Spence,  Equitable  Jurisdiction  of  the  Court  of  Chancery    170 

Spencer,  Justice  1 

Spencer  v.  McGowen  (13  Wend.  256) 310 

Statute  12  Car.  II,  c.  24,  1660    580 

Statute  23  Henry  VIII  127 

Statute  De  Donis 585 

Statute  cf  Westminster  II,  1285  (13  E.  1,  St.  1)   356 

c.  1.  De  Donis  Conditionalibus 585 

Statute  of  Wills,  32  Henry  VIII,  c.  1 622 

Statute  Quia  Emptores,  18  Edw.  I,  1290 577 

Statutes  of  1857,  Abolishing  the  Civil  Jurisdiction  of  the  Ecclesiastical  Courts     54 

Statutes  of  William  the  Conqueror 40 

Stephen,  Principles  of  Pleading  in  Civil  Actions    356 

Story,  Commentaries  on  the  Constitution  of  United  States 267 

Story,  Equity  Jurisprudence 464,  557 

Stow  V.  People  (25  111.  81) 249 

Supreme  Court  of  Judicature  Act,  1873  73,  361,  562 

Supreme  Court  of  Judicature  Act,  1875    80 

Swinburne,  A  Brief  Treatise  of  Testaments  and  1-ast  Willes 462 

Terry,  Leading  Principles  of  Anglo-American  Law 425 

Town  of  Baltimore  v.  Tcwn  cf  Chester  (53  \'t.  315) 432 

Trader  v.  McKce  (1  Scam.  558)    334 

Tremble  v.  Crowcll  (17  Mich.  493) 301 

Trespass,  Writ  of 355 

Trespass  on  the  Case,  Writ  of 355 

Trinity  County  v.  McCammon  (25  Cal.  117)   248 

Tucker  v.  St.  Louis  Life  Ins.  Co.  (63  Mo.  588)    289 

U.  S.  V.  Arredondo  (6  Pet.  691) 292 

U.  S.  V.  Harmon  (45  Fed.  414)    18 

Van  Ness  v.  Pacard  (2  Pet.  137) 271 


TABLE  OF  CASES  xix 

Page 

Vidal  V.  Girard  (2  How.  127) 275 

Von  Schmidt  v.  Wilber  (99  Cal.  511)   323 

Wachter,  Pandekten  521 

Warren  &  Brandeis,  Right  to  Privacy  (4  Harv.  Law  Rev.  193)   494 

Weaver  v.  Gardner  (14  Kan.  347) 233 

Wells  V.  Oregon  R.  &  N.  Co.  (15  Fed.  661)    239 

Westminster  II,  Statute  of   356,  685 

Wharton  v.  Morris  (1  Dall.  125) 267 

Wheeler  v.  Klaholt  (178  Mass.  141)  460 

Wigmcre,  Evidence 136 

Wihtraed,  Laws  of 37 

Wilkins  :;.  Philips  (3  Ohio  49)   245 

William  the  Conqueror,  Statutes  of 40 

William  Dodd  v.  John  Browning  et  al.  (Cal.  Proc.  Chan.  I,  xiii)    159 

Williams  v.  Miles  (68  Neb.  463) 270 

Willoughby,  Social  Justice 1 

Wilson,  Life  of  James  I    166 

Wilson  V.  Bumstead  (12  Neb.  1) 229 

Wood  V.  Gunston  (Style,  466) 134 

Wood  V.  Rowcliffe  (2  Phil.  382)    1 556 

Wooddesson,  Elements  of  Jurisprudence 184 

Wooddesson,  Lectures  on  the  Law  of  England 185 

Writ  of  Covenant    354 

Writ  of  Debt    "l 353 

Writ  of  Detinue 354 

Writ  of  Ejectione  Firmae 352 

Writ  of  Trespass    355 

Writ  of  Trespass  on  the  Case    355 

Wyman,  Public  Service  Corporations    553 

Zeisweiss  v.  James  (63  Pa.  St.  465) 276 


HISTORY  AND  SYSTEM  OF  THE 
COMMON   LAW 


CHAPTER  I 

FUNDAMENTAL    CONCEPTIONS 

JUSTICE 

The  object  of  Law  is  the  administration  of  justice.  Law  is  a  body  of  rules 
for  the  systematic  and  regular  public  administration  of  justice.  Hence  we  may 
ask,  at  the  outset,  what  is  justice? ' 

Institutes  of  Justinian,  I,  1,  sees.  1,  3. 

Justice  is  the  set  and  constant  purpose  which  gives  to  every  man 
his  due.  The  precepts  of  law  are  these :  to  live  honorably,  to  injure 
no  one,  and  to  give  every  man  his  due. 

Kant,  Rechtslehre  (2   ed.),   xxxiii. 

Right  is  therefore  the  sum  of  the  conditions  under  which  the  will 
of  one  can  be  brought  into  harmony  with  the  will  of  another  ac- 
cording to  a  universal  law  of  freedom.  Every  act  is  right  which, 
in  itself,  or  in  accordance  with  its  maxim,  can  co-exist  with  the  free- 
dom of  the  will  of  each  and  all  according  to  a  universal  law. 

Spencer,  Justice,  sec.  27. 

Hence,  that  which  we  have  to  express  in  a  precise  way,  is  the 
liberty  of  each  limited  only  by  the  like  liberties  of  all.  This  we  do 
by  saying:  Every  man  is  free  to  do  that  which  he  wills,  provided 
he  infringes  not  the  equal  freedom  of  any  other  man. 

WiLLOUGHBY,    SOCIAL    JUSTICE,  20-21. 

Justice  to  the  individual,  then,  must  according  to  these  prin- 
ciples consist  in  the  rendering  to  him,  so  far  as  possible,  all  those 

1  Salmond,  Jurisprudence  (3ed.),  §§6,  7,  9,  10,25,26;  Miller,  the  Data  of  Juris- 
prudence, chap.  6;  Markby,  Elements  of  Law,  §201;Gareis,  Science  of  Law 
(Kocourek's  translation),  48.  See  also,  Bentham,  Theor>^  of  Legislation,  Principles 
of  the  Civil  Code,  pt.  I,  chaps.  17. 


2  FUNDAMENTAL  CONCEPTIONS 

services,  and  surrounding  him  with  all  those  conditions,  which 
he  requires  for  his  highest  self,  for  the  satisfaction  of  those  desires 
which  his  truest  judgment  tells  him  are  good.  Conversely,  op- 
portunity for  fulfillment  of  highest  aims  is  all  that  may  be  justly 
claimed  as  a  right. ^ 

Paulsen,  Ethics  (Thilly's  translation),  chap.  9. 

Justice,  as  a  moral  habit,  is  that  tendency  of  the  will  and  mode 
of  conduct  which  refrains  from  disturbing  the  lives  and  interests  of 
others,  and,  as  far  as  possible,  hinders  such  interference  on  the  part 
of  others.  This  virtue  springs  from  the  individual's  respect  for  his 
fellows  as  ends  in  themselves  and  as  his  co  equals.  The  different 
spheres  of  interests  may  be  roughly  classified  as  follows:  body  and 
life;  the  family,  or  the  extended  individual  life;  property,  or  the 
totality  of  the  instruments  of  action ;  honor,  or  the  ideal  existence ; 
and  finally  freedom,  or  the  possibility  of  fashioning  one's  life  as  an 
end  in  itself.  The  law  defends  these  different  spheres,  thus  giving 
rise  to  a  corresponding  number  of  spheres  of  rights,  each  being 
protected  by  a  prohibition.  .  .  .  To  violate  the  rights,  to  inter- 
fere with  the  interests  of  others,  is  injustice.  All  injustice  is  ulti- 
mately directed  against  the  life  of  the  neighbor;  it  is  an  open  avowal 
that  the  latter  is  not  an  end  in  itself,  having  the  same  value  as  the 
individual's  own  life.  The  general  formula  of  the  duty  of  justice 
may  therefore  be  stated  as  follows:  Do  no  wrong  yourself,  and 
permit  no  wrong  to  be  done,  so  far  as  lies  in  your  power;  or,  ex- 
pressed positively:   Respect  and  protect  the  right. 

Pollock,  First  Book,  of  Jurisprudence  (3  ed.),   32-33. 

Law  presupposes  ideas,  however  rudimentary,  of  justice.  But, 
law  being  once  established,  just,  in  matters  of  the  law,  denotes 
whatever  is  done  in  express  fulfillment  of  the  rules  of  law,  or  is 
approved  and  allowed  by  law.  Not  everything  which  is  not  for- 
bidden is  just.  Many  things  are  left  alone  by  the  state,  as  it  were 
under  protest,  and  only  because  it  is  thought  that  interference  would 
do  more  harm  than  good.     In  such  things  the  notion  of  justice  has 

^  "The  old  justice  in  the  economic  field  consisted  chiefly  in  securing  to  each 
individual  his  rights  in  property  or  contracts.  The  new  justice  must  consider 
how  it  can  secure  for  each  individual  a  standard  of  living,  and  such  a  share  in 
the  values  of  civilization  as  shall  make  possible  a  full  moral  life."  Dewey  and 
Tufts,  Ethics,  496. 


JUSTICE  3 

noplace.  .  .  .  The  words  "just"  and  "justice,"  and  correspond- 
ing words  in  other  tongues,  have  never  quite  lost  ethical  significance 
even  in  the  most  technical  legal  context.  The  reason  of  this  (un- 
duly neglected  by  some  moderns  for  the  sake  of  a  merely  verbal  and 
illusive  exactness)  is  that  in  the  development  of  the  law  both  by 
legislative  and  by  judicial  processes  appeal  is  constantly  made  to 
ethical  reason  and  the  moral  judgment  of  the  community.  Doubt- 
less the  servants  of  the  law  must  obey  the  law,  whether  the  specific 
rules  of  law  be  morally  just  in  their  eyes  or  not:  this,  however,  is 
only  saying  that  the  moral  judgment  we  regard  is  the  judgment  of 
the  community,  and  not  the  particular  opinion  of  this  or  that  citi- 
zen. Further,  some  conflict  between  legal  and  moral  justice  can 
hardly  be  avoided,  for  morality  and  law  can  not  move  at  exactly 
the  same  ratio.  Still,  in  a  well-ordered  State  such  conflict  is  ex- 
ceptional and  seldom  acute.  Legal  justice  aims  at  realizing  moral 
justice  within  its  range,  and  its  strength  largely  consists  in  the  gen- 
eral feeling  that  this  is  so. 


LAW^ 

Justice  may  be  administered,  according  to  the  discretion  of  the  person  who 
administers  it  for  the  time  being,  or  according  to  law.  Law  means  uniformity 
of  judicial  action,  ■ — •  generality,  equality,  and  certainty  in  the  administration  of 
justice.  The  advantages  of  law  are:  (1)  It  enables  us  to  predict  the  course  the 
administration  of  justice  will  take.  (2)  It  prevents  errors  of  individual  judg- 
ment. (3)  It  protects  against  improper  motives  on  the  part  of  judicial  officers. 
(4)  It  gives  the  magistrate  the  benefit  of  all  the  experience  of  his  predecessors. 

Blackstone,  Commentaries,  I,  44-46. 

Thus  much  I  thought  it  necessary  to  premise  concerning  the  law 
of  nature,  the  revealed  law,  and  the  law  of  nations  before  I  pro- 
ceeded to  treat  more  fully  of  the  principal  subject  of  this  section, 
municipal  or  civil  law;  that  is,  the  rule  by  which  particular  dis- 
tricts, communities,  or  nations  are  governed ;  being  thus  defined  by 
Justinian,  ''jus  civile  est  quod  quisque  sibi  populus  constituit."     I  call 

1  Salmond,  Jurisprudence,  chaps.  2  and  3;  Holland,  Elements  of  Jurisprudence, 
chaps.  2  and  3;  Markby,  Elements  of  Law,  §§  1-26;  Gray,  Nature  and  Sources 
of  Law,  chap.  4;  Pollock,  First  Book  of  Jurisprudence,  pt.  1,  chap.  1;  Austin, 
Jurisprudence,  Lects.  Iand5;  Korkunov,  General  Theory  of  Law  (Hastings' trans- 
lation) 40-115;  Clark,  Practical  Jurisprudence,  pt.  1,  chap.  7  to  middle  of  p. 
93,  conclusion  of  chap.  11  (p.  134),  conclusion  of  chap.  14  (p.  172);  Maine,  Early 
History  of  Institutions,  chap.  13;   Lee,  Historical  Jurisprudence,  1-5. 


4  FUNDAMENTAL  CONCEPTIONS 

it  municipal  law,  in  compliance  with  common  speech ;  for  though 
strictly  that  expression  denotes  the  particular  customs  of  one  single 
municipitim  or  free  town,  yet  it  may  with  sufficient  propriety  be 
applied  to  any  one  state  or  nation  which  is  governed  by  the  same 
laws  or  customs. 

Municipal  law,  thus  understood,  is  properly  defined  to  be  "a  rule 
of  civil  conduct  prescribed  by  the  supreme  power  in  a  state,  com- 
manding what  is  right  and  prohibiting  what  is  wrong."  Let  us 
endeavor  to  explain  its  several  properties  as  they  arise  out  of  this 
definition.  And,  first,  it  is  a  rule:  not  a  transient  sudden  order  from 
a  superior  to  or  concerning  a  particular  person;  but  something  per- 
manent, uniform,  and  universal.  Therefore  a  particular  act  of  the 
legislature  to  confiscate  the  goods  of  Titius,  or  to  attaint  him  of  high 
treason,  does  not  enter  into  the  idea  of  a  municipal  law:  for  the 
operation  of  this  act  is  spent  upon  Titius  only,  and  has  no  relation 
to  the  community  in  general;  it  is  rather  a  sentence  than  a  law. 
But  an  act  to  declare  that  the  crime  of  which  Titius  is  accused  shall 
be  deemed  high  treason;  this  has  permanency,  uniformity,  and  uni- 
versality, and  therefore  is  properly  a  rule.  It  is  also  cal  ed  a  rule, 
to  distinguish  it  from  advice  or  counsel,  which  we  are  at  liberty  to 
follow  or  not,  as  we  see  proper,  and  to  judge  upon  the  reasonable- 
ness or  unreasonableness  of  the  thing  advised:  whereas  our  obe- 
dience to  the  law  depends  not  upon  our  approbation,  but  upon  the 
maker's  will.  Counsel  is  only  a  matter  of  persuasion,  law  is  matter 
of  injunction;  counsel  acts  only  upon  the  willing,  law  upon  the 
unwilling  also. 

It  is  also  called  a  rule  to  distinguish  it  from  a  compact  or  agree- 
ment ;  for  a  compact  is  a  promise  proceeding  from  us,  law  is  a  com- 
mand directed  to  us.  The  language  of  a  compact  is,  "I  will,  or  will 
not,  do  this" ;  that  of  a  law  is,  "thou  shalt,  or  shalt  not,  do  it."  It 
is  true  there  is  an  obligation  which  a  compact  carries  with  it,  equal 
in  point  of  conscience  to  that  of  a  law;  but  then  the  original  of  the 
obligation  is  different.  In  compacts  we  ourselves  determine  and 
promise  what  shall  be  done,  before  we  are  obliged  to  do  it;  in  laws, 
we  are  obliged  to  act  without  ourselves  determining  or  promising 
anything  at  all.     Upon  these  accounts  law  is  defined  to  be  "a  rule." 

Municipal  law  is  also  "a  rule  of  civil  conduct."  This  distin- 
guishes municipal  law  from  the  natural,  or  revealed;  the  former  of 
which  is  the  rule  of  moral  conduct,  and  the  latter  not  only  the  rule 
of  moral  conduct,  but  also  the  rule  of  faith.  These  regard  man  as 
a  creature,  and  point  out  his  duty  to  God,  to  himself,  and  to  his 


LAW  5 

neighbor,  considered  in  the  light  of  an  individual.  But  municipal 
or  civil  law  regards  him  also  as  a  citizen,  and  bound  to  other  duties 
towards  his  neighbor  than  those  of  mere  nature  and  religion: 
duties  which  he  has  engaged  in  by  enjoying  the  benefits  of  the 
common  union;  and  which  amount  to  no  more  than  that  he  do  con- 
tribute, on  his  part,  to  the  subsistence  and  the  peace  of  the  society. 
It  is  likewise  "a  rule  prescribed."  Because  a  bare  resolution,  con- 
fined in  the  breast  of  the  legislator,  without  manifesting  itself  by 
some  external  sign,  can  never  be  properly  a  law.  It  is  requisite 
that  this  resolution  be  notified  to  the  people  who  are  to  obey  it. 
But  the  manner  in  which  this  notification  is  to  be  made,  is  matter 
of  very  great  indifi"erence.  It  may  be  notified  by  universal  tradi- 
tion and  long  practice,  which  supposes  a  previous  publication,  as  is 
the  case  of  the  common  law  of  England.  It  may  be  notified  viva 
voce,  by  officers  appointed  for  that  purpose,  as  is  done  with  regard 
to  proclamations,  and  such  acts  of  parliament  as  are  appointed  to 
be  publicly  read  in  churches  and  other  assemblies.  It  may  lastly 
be  notified  by  writing,  printing,  or  the  like;  which  is  the  general 
course  taken  with  all  our  acts  of  parliament.  .  .  .  But  when 
this  rule  is  in  the  usual  manner  notified,  or  prescribed,  it  is  then 
the  subject's  business  to  be  thoroughly  acquainted  therewith;  for 
if  ignorance  of  what  he  might  know  were  admitted  as  a  legitimate 
excuse,  the  laws  would  be  of  no  effect,  but  might  always  be  eluded 
with  impunity. 

But  farther:  municipal  law  is  "a  rule  of  civil  conduct  prescribed 
by  the  supreme  power  in  a  state."  For  legislature,  as  was  before 
observed,  is  the  greatest  act  of  superiority  that  can  be  exercised  by 
one  being  over  another.  Wherefore  it  is  requisite  to  the  very  es- 
sence of  a  law,  that  it  be  made  by  the  supreme  power.  Sovereignty 
and  legislature  are  indeed  convertible  terms;  one  can  not  subsist 
without  the  other. ^ 

The  term  "civil  law"  is  strictly  and  etymologically  applicable  to  the  special  or 
peculiar  system  or  body  of  laws  of  any  particular  state  or  people,  for  which  we 
commonly  employ  the  term  municipal  law.  But  the  jus  civile  Romanorum,  or 
legal  system,  of  the  Romans,  was  long  preeminently  the  civil  law.  Hence  the 
term  came  to  mean  Roman  law;  and  it  is  too  well  fixed  in  that  meaning  to  render 

1  Salmond,  Jurisprudence  (3  ed.),  chap.  5;  Holland,  Elements  of  Jurisprudence, 
chap.  4;  Markby,  Elements  of  Law,  §§31-38;  Br>'ce,  Studies  in  History  and 
Jurisprudence,  Essay  10;  Austin,  Jurisprudence,  Lect.  6;  Gray,  Nature  and  Sources 
of  Law,  §§  169-183;  Jenks,  Law  and  Politics  in  the  Middle  Ages,  68-71;  Maine, 
Early  History  of  Institutions,  Lect.    12. 


6  FUNDAMENTAL    CONCEPTIONS 

restoration  of  the  true  sense  easy  or  perhaps  advisable.  "Municipal  law,"  the 
term  generally  made  use  of  to  denote  the  system  or  body  of  law  of  a  particular 
state,  is  unfortunately  chosen,  but  well  settled  in  good  usage. 

Three  common  uses  of  the  term  law  require  to  be  distinguished:  These  are  (1) 
Law  as  used  in  the  natural  and  physical  sciences,  (2)  Natural  law,  or  la-w  of  nature, 
as  the  term  is  used  by  writers  on  the  philosophy  of  law,  (3)  Law  in  the  juridical 
sense.  In  the  natural  sciences,  law  is  used  to  mean  deductions  from  human  expe- 
rience of  the  course  of  events.  Thus,  the  "law  of  gravitation"  is  a  record  of 
human  observation  and  experience  of  the  manner  in  which  bodies  which  are  free 
to  move  do,  in  fact,  move  toward  one  another.  By  natural  law  or  the  law  of 
nature,  writers  upon  legal  subjects  mean  the  principles  which  philosophy  and 
ethics  discover  as  those  which  should  govern  human  actions  and  relations.  Laws 
of  nature,  in  this  sense,  might  be  defined  thus:  "Rational  and  necessary  inferences 
from  the  facts  of  nature,  with  respect  to  which  obligatory  rules  of  human  con- 
duct ought  to  be  framed."  Law  in  the  juridical  sense  is:  The  body  of  rules  recog- 
nized or  enforced  by  public  or  regular  tribunals  in  the  administration  of  justice. 
The  idea  which  the  three  hav^e  in  common  is  order  or  regularity  —  the  idea  of  a 
rule  or  principle  underlying  a  sequence  of  events,  whether  natural  or  moral  or 
judicial.  It  is  usual  to  distinguish  law  in  the  juridical  sense  from  so-called 
natural  law  under  the  name  of  positive  law.  The  following  extracts  deal  with 
law  in  the  juridical  sense. 

Holland,  Elements  of  Jurisprudence,  chap.  3  (conclusion). 

A  law,  in  the  proper  sense  of  the  term,  is  therefore  a  general  rule 
of  human  action,  taking  cognizance  only  of  external  acts,  enforced 
by  a  determinate  authority,  which  authority  is  human,  and,  among 
human  authorities,  is  that  which  is  paramount  in  a  political  society. 
More  briefly,  a  general  rule  of  external  human  action  enforced 
by  a  sovereign  political  authority. 

All  other  rules  for  the  guidance  of  human  action  are  called  laws 
m.erely  by  analogy;  and  any  propositions  which  are  not  rules  for 
human  action  are  called  laws  by  metaphor  only. 

Salmond,  Jurisprudence,  sec.  5. 

The  law  is  the  body  of  principles  recognized  and  applied  by  the 
state  in  the  administration  of  justice.  Or,  more  shortly:  The  law 
consists  of  the  rules  recognized  and  acted  on  in  courts  of  justice. 

It  will  be  noticed  that  this  is  a  definition,  not  of  a  law,  but  of  the 
law,  and  our  first  concern  is  to  examine  the  significance  of  this  dis- 
tinction. The  term  law  is  used  in  two  senses,  which  may  be  con- 
veniently distinguished  as  the  abstract  and  the  concrete.  In  its 
abstract  application  we  speak  of  the  law  of  England,  the  law  of 
libel,  criminal  law,  and  so  forth.  Similarly  we  use  the  phrases  law 
and  order,  law  and  justice,  courts  of  law.     It  is  to  this  usage  that 


LAW  7 

our  definition  is  applicable.  In  its  concrete  sense,  on  the  other  hand, 
we  say  that  Parliament  has  enacted  or  repealed  a  law.  We  speak 
of  the  by-laws  of  a  railway  company  or  municipal  council.  We 
hear  of  the  commerce  laws  or  the  navigation  laws.  The  distinction 
demands  attention  for  this  reason,  that  the  concrete  term  is  not  co- 
extensive w'ith  the  abstract  in  its  application.  Law  or  the  law  does 
not  consist  of  the  total  number  of  laws  in  force.  The  constituent 
elements  of  which  the  law  is  made  up  are  not  laws  but  rules  of  law 
or  legal  principles.  That  a  will  requires  two  witnesses  is  not  rightly 
spoken  of  as  a  law  of  England ;  it  is  a  rule  of  English  law.  A  law 
means  a  statute,  enactment,  ordinance,  decree  or  any  other  exercise 
of  legislative  authority.  It  is  one  of  the  sources  of  law  in  the 
abstract  sense.  A  law  produces  statute  law,  just  as  custom  produces 
customary  law,  or  as  a  precedent  produces  case-law. 

Jenks,  Law  and  Politics  in  the  Middle  Ages,  1-3. 

To  a  layman,  the  task  of  compiling  a  list  of  laws  might  seem  the 
simplest  of  duties,  demanding  only  the  perseverance  and  accuracy 
of  a  good  clerk  and  the  technical  knowledge  of  an  average  profes- 
sional lawyer.  A  generation  which  has,  consciously  or  uncon- 
sciously, imbibed  the  Austinian  doctrine,  that  Law  is  a  command  of 
the  State,  cannot  believe  it  possible  that  the  State  should  ha^■e 
allowed  any  uncertainty  to  rest  upon  such  an  important  act  as  the 
making  of  a  law.  Even  a  professed  student  of  the  Austinian  theory, 
though  he  is  aware  of  certain  awkward  inconsistencies  in  the  doc- 
trine of  the  great  jurist,  is  inclined  to  regard  these  inconsistencies 
as  belonging  more  to  the  theory  than  to  the  facts. 

Nor  is  he,  in  truth,  very  far  wrong.  When  all  deductions  have 
been  made  for  uncertainties  of  interpretation,  and  authorities  of 
doubtful  validity,  it  is  yet  possible  to  say  with  tolerable  certainty 
what  is  law  and  what  is  not,  in  the  England  or  the  France  of  today. 
The  contents  of  legal  systems  may  be  complex  and  voluminous, 
but  the  idea  of  law  is  comparatively  simple.  Despite  all  criticism, 
Austin's  main  position  is  unassailable,  regarded  as  a  summary  of 
existing  facts.  What  the  State  wills,  that,  and  that  alone,  can  the 
individual  be  compelled  to  obey. 

But  this  fact,  suggestive  as  it  is,  loses  half  its  value,  unless  it  is 
regarded  in  its  true  historical  perspective,  as  the  final  outcome  of  a 
long  unconscious  process,  fraught  with  infinite  moment  to  the 
human  race.  For,  as  w^e  go  back  upon  the  history  of  Law-,  we  very 
soon  reach  a  point  at  which  the  Austinian  theory  is  helpless  to 


8  FUNDAMENTAL   CONCEPTIONS 

explain  the  facts.  Here  is  a  "source"  of  law,  an  authority  which, 
for  some  reason  or  another,  great  masses  of  men  feel  themselves 
bound  to  follow,  not  because  they  choose,  but  because  they  must. 
And  yet  it  certainly  is  not  a  command  of  the  State,  direct  or  in- 
direct. Upon  critical  examination,  it  may  turn  out  to  be  the  work 
of  a  mere  private  composer.  Why  do  men  obey  it?  Further  back 
again,  we  find  a  purely  impersonal  document,  compiled,  no  one 
exactly  knows  how,  or  by  whom ;  and  yet  it  is  the  controlling  force 
which  shapes  the  daily  conduct  of  men.  They  do  not  even  con- 
sider the  possibility  of  disregarding  it.  It  is  not  the  work  of  the 
State,  it  may  not  even  be  recognized  by  the  State,  there  may  be  no 
State  to  recognize  it.  Yet  the  essential  ideas  of  Law,  the  evident 
ancestors  of  our  modern  juristic  notions,  are  clearly  there. 

It  is  manifest  then,  that  to  the  fundamental  question,  What 
is  Law?  no  dogmatic  or  comprehensive  answer  can  safely  be  given. 
Not  only  do  systems  of  law  change  their  contents,  but  the  concep- 
tion of  Law  itself  changes  with  the  progress  of  mankind . 

Gray,  Nature  and  Sources  of  Law,  §§  191-194,  199,  203-205, 
207-209,  211-213,  231. 
Sec.  191.  The  Law  of  the  State  or  of  any  organized  body  of 
men  is  composed  of  the  rules  which  the  courts,  that  is,  the  judicial 
organs  of  that  body,  lay  down  for  the  determination  of  legal  rights 
and  duties.  The  difference  in  this  matter  between  contending 
schools  of  Jurisprudence  arises  largely  from  not  distinguishing 
between  the  Law  and  the  Sources  of  the  Law.  On  the  one  hand, 
to  affirm  the  existence  of  nicht  positivisches  RecJit,  that  is,  of  Law 
which  the  courts  do  not  follow,  is  declared  to  be  an  absurdity;  and 
on  the  other  hand,  it  is  declared  to  be  an  absurdity  to  say  that 
the  Law  of  a  great  nation  means  the  opinions  of  half-a-dozen  old 
gentlemen,  some  of  them,  conceivably,  of  very  limited  intelligence. 
The  truth  is,  each  party  is  looking  at  but  one  side  of  the  shield. 
If  those  half-a-dozen  old  gentlemen  form  the  highest  judicial 
tribunal  of  a  country,  then  no  rule  or  principle  which  they  refuse 
to  follow  is  Law  in  that  country.  However  desirable,  for  instance, 
it  may  be  that  a  man  should  be  obliged  to  make  gifts  which  he  has 
promised  to  make,  yet  if  the  courts  of  a  country  will  not  compel 
him  to  keep  his  promise,  it  is  not  the  Law  of  that  country  that 
promises  to  make  a  gift  are  binding.  On  the  other  hand,  those 
six  men  seek  the  rules  which  ihey  follow  not  in  their  own  whims, 
but  they  derive  them  from  sources  often  of  the  most  general  and 


LAW  9 

permanent  character,  to  which  they  are  directed,  by  the  organized 
body  to  which  they  belong,  to  apply  themselves.  I  believe  the 
definition  of  Law  that  I  have  given  to  be  correct;  but  let  us  con- 
sider some  other  definitions  of  the  Law  which  have  prevailed  and 
which  still  prevail. 

Sec.  192.  .  .  .  There  are  three  theories  which  have  com- 
mended themselves  to  accurate  thinkers,  which  have  had  and 
which  still  have  great  acceptance,  and  which  deserve  examination. 
In  all  of  them  it  is  denied  that  the  courts  are  the  real  authors  of 
the  Law,  and  it  is  contended  that  they  are  merely  the  mouthpieces 
which  give  it  expression. 

Sec.  193.  The  first  of  these  theories  is  that  Law  is  made  up  of 
the  commands  of  the  sovereign.  This  is  Austin's  view.  "Every 
positive  law,"  he  says,  "obtaining  in  any  community,  is  a  creature 
of  the  Sovereign  or  State;  having  been  established  immediately 
by  the  monarch  or  supreme  body,  as  exercising  legislative  or  judi- 
cial functions;  or  having  been  established  immediately  by  a  sub- 
ject individual  or  body,  as  exercising  rights  or  powers  of  direct  or 
judicial  legislation,  which  the  monarch  or  supreme  body  has  ex- 
pressly or  tacitly  conferred." 

Sec.  194.  In  a  sense,  this  is  true;  the  State  can  restrain  its 
courts  from  following  this  or  that  rule,  but  it  often  leaves  them  free 
tofoUow  what  they  think  right ;  and  it  is  certainly  a  forced  expression 
to  say  that  one  commands  things  to  be  done,  because  he  has  power 
(which  he  does  not  exercise)  to  forbid  their  being  done. 

Sec.  199.  Austin's  statement  that  the  Law  is  entirely  made  up 
of  commands  directly  or  indirectly  imposed  by  the  State  is  correct, 
therefore,  only  on  the  theory  that  everything  which  the  State  does 
not  forbid  its  judges  to  do,  and  which  they  in  fact  do,  the  State  com- 
mands, although  the  judges  are  not  animated  by  a  direct  desire  to 
carry  out  the  State's  wishes,  but  by  entirely  different  ones. 

Sec.  203.  The  second  theory  on  the  nature  of  Law  is  that  the 
courts,  in  deciding  cases,  are,  in  truth,  applying  what  has  previously 
existed  in  the  common  consciousness  of  the  people.  Savigny  is  the 
ablest  expounder  of  this  theory.  At  the  beginning  of  the  System 
des  Jieutigen  roemischen  Rechts,  he  has  set  it  forth  thus:  "It  is  in 
the  common  consciousness  of  the  people  that  the  positive  law  lives, 
and  hence  we  have  to  call  it  Volksrecht.  ...  It  is  the  Volksgeist, 
living  and  working  in  all  the  individuals  in  common,  which  begets 


10  FUNDAMENTAL    CONCEPTIONS 

the  positive  law,  so  that  for  the  consciousness  of  each  individual 
there  is,  not  by  chance  but  necessarily,  one  and  the  same  law.  .  .  . 
The  form  in  which  the  Law  lives  in  the  common  consciousness  of 
the  people,  is  not  that  of  abstract  rule,  but  the  living  intuition  of 
the  institute  of  the  Law  in  its  organic  connection.  .  .  .  When  I 
say  that  the  exercise  of  the  Volksrecht  in  single  cases  must  be  con- 
sidered as  a  means  to  become  acquainted  with  it,  an  indirect  acquain- 
tance must  be  understood,  necessary  for  those  who  look  at  it  from 
the  outside,  without  being  themselves  members  of  the  community 
in  which  the  Volksrecht  has  arisen  and  leads  its  continuous  life. 
For  the  members  of  the  community,  no  such  inference  from  single 
cases  of  exercise  is  necessary,  since  their  knowledge  of  it  is  direct 
and  based  on  intuition." 

Sec.  204.  Savigny  is  careful  to  discriminate  between  the  com- 
mon consciousness  of  the  people  and  custom:  "The  foundation  of 
the  Law,"  he  says,  "has  its  existence,  its  reality,  in  the  common 
consciousness  of  the  people.  This  existence  is  invisible.  How  can 
we  become  acquainted  with  it?  We  become  acquainted  with  it 
as  it  manifests  itself  in  external  acts,  as  it  appears  in  practice, 
manners,  and  custom.  By  the  uniformity  of  a  continuous  and  con- 
tinuing mode  of  action,  we  recognize  that  the  belief  of  the  people 
is  its  common  root,  and  not  mere  chance.  Thus,  custom  is  the  sign 
of  positive  law,  not  its  foundation." 

Sec.  205.  Savigny  is  confronted  by  a  difhculty  of  the  same  kind 
as  confronted  Austin.  The  great  bulk  of  the  Law  as  it  exists  in 
any  community  is  unknown  to  its  rulers,  and  it  is  only  by  aid  of 
the  doctrine  that  what  the  sovereign  permits  he  commands,  that 
that  Law  can  be  considered  as  emanating  from  him;  but  equally, 
the  great  bulk  of  the  Law  is  unknown  to  the  people;  how,  then, 
can  it  be  the  product  of  their  "common  consciousness?"  How 
can  it  be  that  of  which  they  "feel  the  necessity  as  law?" 

Sec.  207.  Savigny  meets  the  difficulty  thus:  "The  Law,  origi- 
nally the  common  property  of  the  collected  people,  in  consequence 
of  the  ramifying  relations  of  real  life,  is  so  developed  in  its  details 
that  it  can  no  more  be  mastered  by  the  people  generally.  Then  a 
separate  class  of  legal  experts  is  formed  which,  itself  an  element  of 
the  people,  represents  the  community  in  this  domain  of  thought. 
In  the  special  consciousness  of  this  class,  the  Law  is  only  a  continua- 
tion and  peculiar  development  of  the  Volksrecht.  The  last  leads, 
henceforth,  a  double  life.     In  its  fundamental  principles  it  con- 


LAW  11 

tinues  to  live  in  the  common  consciousness  of  the  people ;  the  exact 
determination  and  the  application  to  details  is  the  special  calhng 
of  the  class  of  Jurisconsuhs." 

Sec.  208.  But  the  notion  that  the  opinions  of  the  Jurisconsults 
are  the  developed  opinions  of  the  people  is  groundless.  In  the 
countries  of  the  English  Common  Law,  where  the  judges  are  the 
jurists  whose  opinions  go  to  make  up  the  Law,  there  would  be  less 
absurdity  in  considering  them  as  expressing  the  opinions  of  the 
people;  but  on  the  Continent  of  Europe,  in  Germany  for  instance, 
it  is  difficult  to  think  of  the  unofficial  and  undeterminate  class  of 
jurists,  past  and  present,  from  whose  writings  so  great  a  part  of 
the  Law  has  been  derived,  as  expressing  the  opinions  of  the  people. 
In  their  reasonings,  it  is  not  the  opinions  of  the  people  of  their 
respective  countries,  Prussia,  or  Schwartzenburg-Sonderhausen, 
which  guide  their  judgment.  They  may  bow  to  the  authority  of 
statutes,  but  in  the  domain  of  Law  which  lies  outside  of  statute, 
the  notions  on  Law,  if  they  exist  and  are  discoverable,  which  they 
are  mostly  not,  of  the  persons  among  whom  they  live,  are  the 
last  things  which  they  take  into  account.  What  they  look  to  are 
the  opinions  of  foreign  lawyers,  of  Papinian,  of  Accursius,  of 
Cujacius,  or  at  the  elegantia  juris,  or  at  "juristic  necessity." 

Sec.  209.  The  jurists  set  forth  the  opinions  of  the  people  no 
more  and  no  less  than  any  other  specially  educated  or  trained  class 
in  a  community  sets  forth  the  opinions  of  that  community,  each  in 
its  own  sphere.  They  in  no  other  way  set  forth  the  Volksgeist  in  the 
domain  of  Law  than  educated  physicians  set  forth  the  Volksgeist 
in  the  matter  of  medicine.  It  might  be  very  desirable  that  the  con- 
ceptions of  the  Volksgeist  should  be  those  of  the  most  skillful  of  the 
community,  but  however  desirable  this  might  be,  it  is  not  the  case. 
The  Volksgeist  carries  a  piece  of  sulphur  in  its  waistcoat  pocket  to 
keep  off  rheumatism,  and  thinks  that  butchers  cannot  sit  on  juries. 

Sec.  211.  A  third  theory  of  the  Law  remains  to  consider.  That 
theory  is  to  this  effect:  The  rules  followed  by  the  courts  in  deciding 
questions  are  not  the  expression  of  the  State's  commands,  nor  are 
they  the  expression  of  the  common  consciousness  of  the  people,  but, 
although  what  the  judges  rule  is  the  Law,  it  is  putting  the  cart  before 
the  horse  to  say  that  Law  iswhat  the  judges  rule.  The  Law,  indeed, 
is  identical  with  the  rules  laid  down  by  the  judges,  but  those  rules 
are  laid  down  by  the  judges  because  they  are  the  Law,  they  are  not 
the  Law  because  they  are  laid  down  by  the  judges,  or,  as  the  late 


12  FUNDAMENTAL    CONCEPTIONS 

Mr.  James  C.  Carter  puts  it,  the  judges  are  the  discoverers,  not  the 
creators,  of  the  Law.  And  this  is  the  way  that  judges  themselves 
are  apt  to  speak  of  their  functions. 

Sec.  212.  This  theory  concedes  that  the  rules  laid  down  by  the 
judges  correctly  state  the  Law,  but  it  denies  that  it  is  Law  because 
they  state  it.  Before  considering  the  denial,  let  us  look  a  moment 
at  the  concession.  It  is  a  proposition  with  which  I  think  most 
Common-Law  lawyers  would  agree.  But  we  ought  to  be  sure  that 
our  ideas  are  not  colored  by  the  theories  or  practice  of  the  particular 
system  of  law  with  which  we  are  familiar.  In  the  Common  Law, 
it  is  now  generally  recognized  that  the  judges  have  had  a  main  part 
in  erecting  the  Law ;  that,  as  it  now  stands,  it  is  largely  based  on  the 
opinions  of  past  generations  of  judges;  but  in  the  Civil  Law,  as  we 
shall  see  hereafter,  this  has  been  true  to  a  very  limited  extent.  In 
other  words,  judicial  precedents  have  been  the  chief  material  for 
building  up  the  Common  Law,  but  this  has  been  far  otherwise  in  the 
systems  of  the  Continent  of  Europe.  But  granting  all  that  is  said 
by  the  Continental  writers  on  the  lack  of  influence  of  judicial 
precedents  in  their  countries  to  be  true,  yet,  although  a  past  decision 
may  not  be  a  source  of  Law,  a  present  decision  is  certainly  an 
expression  of  what  the  Law  now  is.  The  courts  of  France  today 
may,  on  the  question  whether  a  blank  indorsement  of  a  bill  of 
exchange  passes  title,  care  little  or  nothing  for  the  opinions  formerly 
expressed  by  French  judges  on  the  point,  but,  nevertheless,  the 
opinion  of  those  courts  today  upon  the  question  is  the  expression 
of  the  present  Law  of  France,  for  it  is  in  accordance  with  such 
opinion  that  the  State  will  compel  the  inhabitants  of  France  to 
regulate  their  conduct.  To  say  that  any  doctrine  which  the  courts 
of  a  country  refuse  to  adopt  is  Law  in  that  country,  is  to  set  up  the 
idol  of  nicht  positivisches  Recht;  and, therefore,  it  is  true,  in  the  Civil 
as  well  as  in  the  Common  Law,  that  the  rules  laid  down  by  the 
courts  of  a  country  state  the  present  Law  correctly. 

Sec.  213.  The  great  gain  in  its  fundamental  conceptions  which 
Jurisprudence  made  during  the  last  century  was  the  recognition  of 
the  truth  that  the  Law  of  a  State  or  other  organized  body  is  not  an 
ideal,  but  something  which  actually  exists.  It  is  not  that  which  is 
in  accordance  with  religion,  or  nature,  or  morality;  it  is  not  that 
which  ought  to  be,  but  that  which  is.  To  fix  this  definitely  in  the 
Jurisprudence  of  the  Common  Law,  is  the  feat  that  Austin  accom- 
plished. He  may  have  been  wrong  in  treating  the  Law  of  the  State 
as  being  the  command  of  the  sovereign,  but  he  was  right  in  teaching 


LAW  13 

that  the  rules  for  conduct  laid  down  by  the  persons  acting  as  judicial 
organs  of  the  State,  are  the  Law  of  the  State,  and  that  no  rules  not 
so  laid  down  are  the  Law  of  the  State. 

Sec.  23 L  To  sum  up.  The  State  exists  for  the  protection  and 
forwarding  of  human  interests,  mainly  through  the  medium  of 
rights  and  duties.  If  every  member  of  the  State  knew  perfectly 
his  own  rights  and  duties,  and  the  rights  and  duties  of  everybody 
else,  the  State  would  need  no  judicial  organs;  administrative  organs 
would  suffice.  But  there  is  no  such  universal  knowledge.  To 
determine,  in  actual  life,  what  are  the  rights  and  duties  of  the 
State  and  of  its  citizens,  the  State  needs  and  establishes  judicial 
organs,  the  judges.  To  determine  rights  and  duties,  the  judges 
settle  what  facts  exist,  and  also  lay  down  rules  according  to  which 
they  deduce  legal  consequences  from  facts.  These  rules  are  the  Law. 

LAW  AND   MORALS  1 

Amos,  Science  of  Law,  43-45. 

In  all  this  story  of  universal  development  it  will  be  observed  that 
law  can  only  take  under  its  shadow  a  very  small  portion  of  the 
inherent  life  and  force  of  each  institution,  though  to  the  whole 
institution  it  gives  so  much.  Law,  indeed,  marks  out  the  limits 
of  the  family,  and  provides  general  remedies  for  the  grosser  viola- 
tions of  the  integrity  of  the  family.  But  it  can  go,  and  does  go, 
a  very  little  way  towards  making  good  husbands  and  wives,  fathers 
and  mothers,  sons  and  daughters,  brothers  and  sisters.  Law  can 
create  and  define  the  relations  of  landlord  and  tenant,  farmer  and 
laborer;  but  it  is  well  known  how  little  it  can  do  directly  to  guide 
landlords  in  the  rent  they  morally  ought  to  exact,  or  the  compensa- 
tion for  improvements  made  by  an  outgoing  tenant  w^hich  they 
ought  to  allow,  or  to  compel  farmers  to  remunerate  their  laborers, 
build  cottages  for  them,  and  exact  work  from  them  in  the  way 
least  likely  to  render  them  paupers  in  their  old  age. 

So  with  contract.  The  operations  of  the  market  must  meet 
with  some  other  stimulus  and  guide  than  legal  rules,  if  men  are  to 
be  scrupulously  honest  in  keeping  their  engagements,  in  selling 

1  Amos,  Science  of  Law,  chap.  3;  Gray,  Nature  and  Sources  of  Law,  chap.  13; 
Pollock,  First  Book  of  Jurisprudence  (3  ed.)  46-56;  Dillon,  Laws  and  Juris- 
prudence of  England  and  America,  12-20;  Korkunov,  General  Theory  of  Law 
(Hastings'  translation),  47-64;   Ames,  Law  and  Morals,  22  Harv.  Law  Rev.  97. 


14  FUNDAMENTAL    CONCEPTIONS 

pure  and  unadulterated  goods,  in  laying  bare  all  the  hidden  vices  of 
the  things  for  which  they  are  endeavoring  to  find  customers. 
Law  can  do  none  of  these  things  directly.  Indeed,  by  trying  to  do 
them  directly  it  may  only  weaken  that  force  of  morality  which 
alone  is  equal  to  the  task. 

Law  can  do  much,  however,  indirectly.  It  defines  the  field  and 
the  different  portions  of  the  field  within  which  moral  agencies  are 
called  to  work.  Law  is  the  constant  and  visible  representative  of  an 
uni\ersal  interest  outside  the  individual  interest  of  each  man  and 
household.  The  best  and  most  vigilant  of  men  might  be  tempted 
to  invade  the  moral  claims  of  their  neighbors,  if  they  were  not  for- 
cibly reminded  of  the  great  and  strong  fence  by  which  those  claims 
are  encompassed.  In  the  same  way  the  weak,  credulous,  and 
thoughtless  might  be  easily  seduced  from  time  to  time  to  part  with 
their  moral  birthright  of  liberty,  and  to  render  themselves  the  con- 
temptible slaves  of  the  strongest  in  the  neighborhood,  if  the  law 
did  not  stand  by  them,  to  remind  them  as  much  of  their  moral  as 
of  their  legal  rights,  and  to  warn  transgressors  of  their  legal  as  well 
as  of  their  moral  duties.  Thus  it  is  well  for  all  men,  in  the  course 
of  perfecting  their  moral  nature,  to  have  ever  at  hand  a  grand, 
visible,  and  practical  witness  to  the  claims  of  their  brother  men,  to 
the  subordination  of  the  individual  person  to  the  State,  and  of  the 
subserviency  of  all  individual  action  and  life  to  the  accomplishment 
of  the  general  aim  of  humanity. 

Lastly,  and  perhaps  more  than  all,  it  is  in  securing  to  individual 
men  a  free  field  of  undisturbed  work  and  life  —  in  other  words,  in 
securing  personal  liberty  —  that  law  exhibits  its  main  moral  effi- 
cacy. Men  cannot  be  virtuous  unless  they  are  free,  and  they 
cannot  be  free  unless  they  are  strongly  guarded  against  the  occa- 
sional license  or  permanent  selfishness  of  those  who  might  impair 
their  security.  Nor  is  it  only  against  the  violent  and  the  bad 
that  this  security  for  freedom  is  needed.  It  is  needed  likewise 
against  the  well-intentioned  and  conscientious,  who  have  not 
learned  to  respect  the  solitude  of  the  human  spirit  nor  to  refrain 
from  giving  rein  to  their  own  capricious  tempers  and  passions. 
Law  respects  and  guards  the  liberty  of  all,  and,  before  the  law  itself 
is  broken,  shelters  the  independence  of  the  vile  and  wortliless  with 
as  much  jealousy  and  alacrity  as  that  of  the  deserving  and  the  rich. 

Pollock,  First  Book  of  Jurisprudence  (3d  ed.,  46-48). 

The  possible  coincidence  of  law  with  morality  is  limited,  at  all 
events,  by  the  range  of  that  which  theologians  have  named  external 


LAW  AND  MORALS  15 

morality.  The  commandment,  "Thou  shalt  not  steal,"  may  be, 
and  in  all  civilized  countries  is,  legal  as  well  as  moral:  the  com- 
mandment, "Thou  shalt  not  covet,"  may  be  of  even  greater  im- 
portance as  a  moral  precept,  but  it  cannot  be  a  legal  one.  Not 
that  a  legislator  might  not  profess  to  make  a  law  against  covetous- 
ness,  but  it  would  be  inoperative  unless  an  external  test  of  covet- 
ousness  were  assigned  by  a  more  or  less  arbitrary  definition;  and 
then  the  real  subject-matter  of  the  law  would  be  not  the  passion  of 
covetousness,  but  the  behavior  defined  as  evincing  it.  The 
judgment  of  law  has  to  proceed  upon  what  can  be  made  mani- 
fest, and  it  commonly  has  to  estimate  human  conduct  by  its  con- 
formity, or  otherwise,  to  what  has  been  called  an  external  standard. 
Action,  and  intent  shown  in  acts  and  words,  not  the  secret  springs 
of  conduct  in  desires  and  motives,  are  the  normal  materials  in 
which  courts  of  justice  are  versed,  and  in  the  terms  of  which  their 
conclusions  are  worked  out  and  delivered.  With  rare  exceptions, 
an  act  not  otherwise  unlawful  in  itself  will  not  become  an  offense 
or  legal  wrong  because  it  is  done  from  a  sinister  motive,  nor  will 
it  be  any  excuse  for  an  act  contrary  to  the  general  law,  or  in  viola- 
tion of  any  one's  rights,  to  show  that  the  motive  from  which  it 
proceeded  was  good.  If  the  attempt  is  made  to  deal  with  rules  of 
the  purely  moral  kind  by  judicial  machinery,  one  of  two  things 
will  happen.  Either  the  tribunal  will  be  guided  by  mere  isolated 
impressions  of  each  case,  and  therefore  will  not  administer  justice 
at  all;  or  (which  is  more  likely)  precedent  and  usage  will  beget 
settled  rule,  and  the  tribunal  will  find  itself  administering  a  formal 
system  of  law,  which  in  time  will  be  as  technical,  and  appeal  as 
openly  to  an  external  standard,  as  any  other  system.  This  process 
took  place  on  a  great  scale  in  the  formation  of  the  Canon  Law, 
and  on  a  considerable  scale  in  the  early  history  of  English  equity 
jurisdiction. 

Blackstone,  Commentaries,  I,  4L 

This  law  of  nature,  being  coeval  with  mankind,  and  dictated  by 
God  himself,  is  of  course  superior  in  obligation  to  every  other.  It 
is  binding  over  all  the  globe  in  all  countries,  and  at  all  times:  no 
human  laws  are  of  any  validity,  if  contrary  to  this;  and  such  of 
them  as  are  valid  derive  all  their  force  and  all  their  authority, 
mediately  or  immediately,  from  this  original.^ 

1  Maine,  Ancient  Law,  chap.  IV,  and  Sir  Frederick  Pollock's  note  G;  Bryce, 
Studies  in  History  and  Jurisprudence,  Essay  11;    Holland,  Elements  of  Juris- 


16  FUNDAMENTAL  CONCEPTIONS 

Loan  Association  v.  Topeka,  Supreme  Court  of  the  United 
States,  1874,  20  Wall.  655,  662. 
Miller,  J.:  It  must  be  conceded  that  there  are  such  rights  in 
every  free  government  beyond  the  control  of  the  State.  A  govern- 
ment which  recognized  no  such  rights,  which  held  the  lives,  the 
liberty,  and  the  property  of  its  citizens  subject  at  all  times  to  the 
absolute  disposition  and  unlimited  control  of  even  the  most  demo- 
cratic repository  of  power,  is  after  all  but  a  despotism.  It  is  true 
it  is  a  despotism  of  the  many,  of  the  majority,  if  you  choose  to  call 
it  so,  but  it  is  none  the  less  a  despotism.  It  may  well  be  doubted 
if  a  man  is  to  hold  all  that  he  is  accustomed  to  call  his  own, 
all  in  which  he  has  placed  his  happiness,  and  the  security  of  which 
is  essential  to  that  happiness,  under  the  unlimited  dominion  of 
others,  whether  it  is  not  wiser  that  this  power  should  be  exercised 
by  one  man  than  by  many.  The  theory  of  our  governments,  State 
and  National,  is  opposed  to  the  deposit  of  unlimited  power  any- 
where. The  executive,  the  legislative,  and  the  judicial  branches 
of  the  governments,  are  all  of  limited  and  defined  powers.  There 
are  limitations  on  such  power  which  grow  out  of  the  essential 
nature  of  all  free  governments,  —  implied  reservations  of  indi- 
vidual rights,  without  which  the  social  compact  could  not  exist, 
and  which  are  respected  by  all  governments  entitled  to  the  name. 
No  court,  for  instance,  would  hesitate  to  declare  void  a  statute 
which  enacted  that  A.  and  B.  who  were  husband  and  wife  to  each 
other  should  be  so  no  longer,  but  that  A.  should  thereafter  be  the 
husband  of  C.  and  B.  the  wife  of  D.  Or  which  should  enact  that 
the  homestead  now  owned  by  A.  should  no  longer  be  his,  but  should 
henceforth  be  the  property  of  B.^ 

Bonham's  Case,  Common  Pleas,  1610  (8  Rep.  118a). 

Lord  Coke:    And  it  appears  in  our  books,  that  in  many  cases 
the  common  law  will  control  acts  of  parliament,  and  sometimes 


prudence,  chap.  3,  subdivision  I;  Markby,  Elements  of  Law,  §§  116-117;  Kor- 
kunov.  General  Theory  of  Law  (Hastings'  translation),  116-138.  See  also  Grotius 
(Whewell's  transation),  Bk.  I,  chap.  1,  §§  x-xii.  For  an  exposition  of  jurispru- 
dence from  this  standpoint,  see  Lorimer,  Institutes  of  Law  (2  ed.) 

^See  Marshall,  C.  J.,  in  Fletcher  v.  Peck,  6  Cranch,  87,  135;  Chase,  J.,  in 
Calder  v.  Bull,  3  Dall.  386,  388;  Field,  J.,  in  Butchers'  Union  Co.  v.  Crescent  City 
Co.,  Ill  U.  S.  746,  762;  Harlan,  J.,  in  Chicago  B.  &Q.  R.  Co.  v.  Chicago,  206  U.  S. 
226,  237;  Cobb,  J.,  in  Pavesich  v.  Life  Ins.  Co.,  122  Ga.  190,  194;  Winslow,  J., 
in  Nunemacher  v.  State,  129  Wis.  190,  198-203. 


LAW  AND  MORALS  17 

adjudge  them  to  be  utterly  void;  for  when  an  act  of  parliament 
is  against  common  right  and  reason,  or  repugnant,  or  impossible  to 
be  performed,  the  common  law  will  control  it  and  adjudge  such  act 
to  be  void.  ...  So  if  an  act  of  parliament  gives  to  any  to  hold, 
or  to  have  conusance  of,  all  manner  of  pleas  arising  before  him 
within  the  manor  of  D.,  yet  shall  he  hold  no  plea,  to  which  he 
himself  is  a  party:  for,  as  hath  been  said,  inigiium  est  aligiiem  suae 
rei  esse  jiidicem} 

City  of  London  v.  Wood,  King's  Bench,  1701  (12  Mod.  669, 
687-688). 
Lord  Holt:  And  what  my  Lord  Coke  says  in  Dr.  Bonham's 
Case  in  his  8  Co.  is  far  from  any  extravagancy,  for  it  is  a  very  rea- 
sonable and  true  saying,  that  if  an  act  of  parliament  should  ordain 
that  the  same  person  should  be  party  and  judge,  or,  which  is  the 
same  thing,  judge  in  his  own  cause,  it  would  be  a  void  act  of  par- 
liament; for  it  is  impossible  that  one  should  be  judge  and  party, 
for  the  judge  is  to  determine  between  party  and  party,  or  between 
the  government  and  the  party;  and  an  act  of  parliament  can  do 
no  wrong,  though  it  may  do  several  things  that  look  pretty  odd ; 
for  it  may  discharge  one  from  his  allegiance  to  the  government  he 
lives  under,  and  restore  him  to  the  state  of  nature;  but  it  cannot 
make  one  that  lives  under  a  government  judge  and  party.  An 
act  of  parliament  may  not  make  adultery  lawful,  that  is,  it  cannot 
make  it  lawful  for  A.  to  lie  with  the  wife  of  B.,  but  it  may  make  the 
wife  of  A.  to  be  the  wife  of  B.  and  dissolve  her  marriage  with  A. 

This  notion  that  there  is  an  appeal  from  legislation  to  common  right  and  rea- 
son or  to  the  law  of  nature,  and  that  courts  are  bound  to  give  effect  to  the  latter 
as  against  positive  law  in  conflict  therewith,  formerly  had  no  little  vogue  and  still 
reappears  in  occasional  dicta,  sometimes  as  an  absolute  dogma,^  sometimes  as  a 
mere  rule  of  moral  obligation,  and  sometimes  in  its  true  place  of  a  rule  of  inter- 
pretation. 

In  practice  we  may  admit  two  propositions  only: 

(a)  As  between  a  man  and  his  conscience,  he  may  under  some  circumstances 
be  justified  morally  in  disobeying  a  law.  He  may  appeal  to  his  reason  and  con- 
science for  internal  justification;  but  the  courts  can  and  will  look  only  to  the  law. 

^  See  Coxe,  Judicial  Power  and  Unconstitutional  Legislation,  Chap.  16. 

^  "Whatever  the  objections  of  the  common  law  of  England,  there  is  a  law 
higher  in  this  country,  and  one  better  suited  to  the  rights  and  liberties  of  the 
American  people  —  that  law  which  accords  to  every  citizen  the  natural  right  to 
gain  a  livelihood  by  intelligence,  honesty,  and  industry  in  the  arts,  the  sciences, 


18  FUNDAMENTAL  CONCEPTIONS 

(b)  There  are  certain  points  of  contact  between  law  and  morals,  where  the 
courts  look  primarily  to  general  principlesof  right  and  justice  for  guidance.  These 
are  three:   discretion,  judicial  law-making,  and  interpretation. 

United  States  v.  Harmon,  United  States  District  Court, 
District  of  Kansas,  1891  (45  Fed.  Rep.  414,  422). 

[Indictment  for  sending  obscene  matter  through  the  mails. 
Defendant  contended  that  he  acted  for  the  pubHc  good,  with 
upright  motives,  to  promote  knowledge  of  sexual  hygiene.] 

Philips,  J. :  The  proposition  is  that  a  man  can  do  no  public  wrong 
who  believes  that  what  he  does  is  for  the  ultimate  public  good. 
The  underlying  vice  of  all  this  character  of  argument  is  that  it 
leaves  out  of  view  the  existence  of  the  social  compact,  and  the  idea 
of  government  by  law.  If  the  end  sought  justifies  the  means,  and 
there  were  no  arbiter  but  the  individual  conscience  of  the  actor  to 
determine  the  fact  whether  the  means  are  justifiable,  homicide, 
infanticide,  pillage  and  incontinence  might  run  riot.  .  .  .  Society 
is  organized  on  the  theory,  born  of  the  necessities  of  human  well- 
being,  that  each  member  yields  up  something  of  his  natural  privi- 
leges, predilections,  and  indulgences  for  the  good  of  the  composite 
community;  and  he  consents  to  all  the  motto  implies,  salus  popidi 
stiprema  est  lex;  and,  as  no  government  can  exist  without  law,  the 
law-making  power  within  the  limits  of  constitutional  authority, 
must  be  recognized  as  the  body  to  prescribe  what  is  right  and  pro- 
hibit what  is  wrong.  It  is  the  very  incarnation  of  the  spirit  of 
anarchy  for  a  citizen  to  proclaim  that  like  the  heathen  he  is  a  law 
unto  himself. 

Bertholf  v.  O'Reilly,  Court  of  Appeals  of  New  York,  1878 
(74N.  Y.  509). 
Andrews,  J. :  If  an  Act  can  stand  when  brought  to  the  test  of  the 
Constitution,  the  question  of  its  validity  is  at  an  end,  and  neither  the 
executive  nor  the  judicial  department  of  the  government  can  refuse 
to  recognize  or  enforce  it.  The  theory  that  laws  may  be  declared 
void  when  deemed  to  be  opposed  to  natural  justice  and  equity, 
although  they  do  not  violate  any  constitutional  provision,  has  some 
support  in  the  dicta  of  learned  judges,  but  has  not  been  approved, 

the  professions,  or  other  vocations.  This  right  may  not,  of  course,  be  pursued 
in  violation  of  laws,  but  must  be  held  to  exist  so  long  as  not  forbidden  by  law." 
In  re  Leach,  I'M  Ind.  G65,  6G8.  See  Lanier  v.  Lanier,  5  Heisk.  (Tenn.)  4G2,  4G5; 
Jeffers  v.  State,  33  Ga.  367. 


LAW  AND  MORALS  19 

so  far  as  we  know,  by  any  authoritative  adjudication,  and  is  re- 
pudiated by  numerous  authorities.  .  .  .  No  law  can  be  pro- 
nounced invalid,  for  the  reason  simply  that  it  violates  our  notions 
of  justice,  is  oppressive  and  unfair  in  its  operation,  or  because,  in 
the  opinion  of  some  or  all  of  the  citizens  of  the  State,  it  is  not  jus- 
tified by  public  necessity,  or  designed  to  promote  the  public  welfare. 
We  repeat,  if  it  violates  no  constitutional  provision,  it  is  valid  and 
must  be  obeyed.^ 

BouviER,  Law  Dictionary. 

Discretion — The  power  exercised  by  courts  to  determine  ques- 
tions to  which  no  strict  rule  of  law  is  applicable  but  which,  from 
their  nature,  and  the  circumstances  of  the  case,  are  controlled  by 
the  personal  judgment  of  the  court. 

NoRRis  V.  Clixkscales,  Supreme  Court  of  South  Caro- 
lina, 1896  (47  S.  C.  488). 
Benet,  J. :  The  term  discretion  implies  the  absence  of  a  hard  and 
fast  rule.  The  establishment  of  a  clearly  defined  rule  would  be  the 
end  of  discretion.  And  yet  discretion  should  not  be  a  word  for 
arbitrary  will  or  unstable  caprice. 

Haywood  v.  Cope,  Rolls  Court,  1858  (25  Beav.  140,  151). 

Romilly,  M.  R.:  It  is  most  important  that  the  profession,  and 
those  who  have  to  advise  in  reference  to  this  subject  should  under- 
stand the  rule  which  is  adopted  in  this  and  the  other  courts,  which 
is,  that  the  discretion  of  the  courts  must  be  exercised  according  to 
fixed  and  settled  rules;  you  can  not  exercise  a  discretion  by  merely 
considering  what,  between  the  parties,  would  be  fair  to  be  done; 
what  one  person  may  consider  fair,  another  percon  may  consider 
very  unfair;  you  must  have  some  settled  rule  and  principle  upon 
which  to  determine  how  that  discretion  is  to  be  exercised. 

Four  propositions  may  be  laid  down  with  reference  to  the  exercise  of  discre- 
tion: (1)  Whether  or  not  a  matter  is  one  for  law  or  for  discretion  is  settled  by  law, 
and  the  court  has  no  power  to  put  it  in  the  one  category  or  the  other  at  pleasure. 
A  court  has  no  discretion  to  apply  the  law  or  not  as  it  sees  fit.  (2)  Where  dis- 
cretion is  conferred,  it  must  really  be  exercised  as  such;  the  court  cannot  act 
oppressively  or  arbitrarily  under  pretence  of  exercising  discretion.  Such  arbi- 
trary or  oppressive  action  under  color  of  exercising  discretion  is  called  abuse  of 

1  Compare  Iredell,  J.,  in  Calder  v.  Btill,  3  Dall.  386,  398-399. 


20  FUNDAMENTAL    CONCEPTIONS 

discretion.  (3)  If  discretion  reposed  in  a  court  or  judge  is  in  fact  exercised  as 
such,  the  manner  of  its  exercise  will  not  be  reviewed.  (4)  But  if  the  discretion 
is  abused,  the  abuse  may  be  reviewed  and  corrected  by  a  higher  tribunal. 

Judicial  law-making  refers  to  decision  by  judges  of  cases  of  a  novel  character, 
not  governed  or  imperfectly  governed  by  existing  rules  of  law,  whereby  new 
rules  arise.  It  is  partly  a  survival  from  times  when  there  was  little  or  no  legis- 
lation, and  when  legislative  and  judicial  functions  were  undifferentiated  and  con- 
fused, partly  a  necessity  by  reason  of  the  impossibility  of  foreseeing  the  infinite 
variety  of  controversies  upon  which  courts  must  pass  and  of  establishing  prin- 
ciples for  their  determination  in  advance.  Its  scope  and  importance  in  our 
system  of  law  are  gradually  diminishing.  Like  judicial  discretion,  this  power 
is  not  arbitrary  and  unrestricted,  but  must  be  exercised  along  well-settled  lines. 
The  chief  agent  in  judicial  law-making  is  analogy,  and  the  process  consists  in 
choosing  between  competing  analogies  of  existing  rules  and  selecting  that  which 
appears  most  in  harmony  with  the  rest  of  the  legal  system  and  most  consonant 
with  reason  and  justice. 

SoHM,  Institutes  of  Roman  Law  (Ledlie's  translation),  2 
Ed.  §  8. 

Having  thus  ascertained  the  rule  of  law,  jurisprudence  must 
next  proceed  to  develop,  or  work  out,  its  contents.  A  rule  of  law 
may  be  worked  out  either  by  developing  the  consequences  which  it 
involves,  or  by  developing  the  wider  principles  which  it  presup- 
poses. For  one  rule  of  law  may  involve  a  series  of  more  specific 
rules  of  law;  it  may  be  a  major  premiss  involving  a  series  of  minor 
premisses.  Or  again,  the  given  rule  of  law  itself  may  be  the  conse- 
quence of  more  general  rules;  it  may  be  a  minor  premiss  presup- 
posing certain  major  premisses.  The  more  important  of  these  two 
methods  of  procedure  is  the  latter,  i.e.  the  method  by  which,  from 
given  rules  of  law,  we  ascertain  the  major  premisses  which  they 
presuppose.  For  having  ascertained  such  major  premisses,  we 
shall  find  that  they  involve,  in  their  logical  consequences,  a  series 
of  other  legal  rules  not  directly  contained  in  the  sources  from  which 
we  ol)tained  our  rule.  The  law  is  thus  enriched,  and  enriched  by  a 
purely  scientific  method.  When  a  given  rule  of  law  is  so  used  as 
to  lead  us,  by  an  inductive  process,  to  the  discovery  of  a  major 
premiss,  the  ascertainment  of  new  rules  by  means  of  the  major 
premiss  thus  discovered  is  termed  the  'analogical  application'  of  the 
given  rule  of  law.  The  application,  then,  of  a  principle  (a  major 
premiss)  which  is  given,  we  call  the  method  of  Inference;  the 
application  of  a  principle  which  we  have  found,  we  call  the  method 
of  Analogy. 

The  scientific  process  by  means  of  which  principles  are  dis- 
covered which  are  not  immediately  contained  in  the  sources  of  law 


LAW  AND  MORALS  21 

may  be  compared  to  the  analytical  methods  of  chemistry.  It  is  in 
this  sense  that  Jhering  has  spoken  of  a  'juristic  chemistry.'  Juris- 
prudence analyses  a  legal  relation  which  is  regulated  by  a  rule 
of  law  into  its  elements.  It  discovers  that  amidst  the  whole  new 
mass  of  legal  relations  which  are  for  e\  er  emerging  into  new  existence 
from  day  to  day  —  endless  and  apparently  countless  —  there  are, 
nevertheless,  certain  elements,  comparatively  few  in  number,  which 
are  perpetually  recurring  merely  in  different  combinations.  These 
elements  constitute,  in  the  language  of  Jhering,  the  'alphabet  of 
law.'  The  common  element,  for  instance,  in  every  agreement, 
whether  it  be  an  agreement  to  purchase  or  to  hire  or  to  create  a 
pledge-right,  etc.,  is  just  the  agreement,  in  other  words,  the  expres- 
sion of  consensus.  An  exhaustive  enumeration  of  the  legal  rules 
concerning  sales  must  necessarily  include  certain  rules  bearing  on 
this  element  in  every  contract  of  sale,  viz.  the  expression  of  the  con- 
cordant will  of  the  parties.  Thus  from  the  legal  rules  concerning 
saleswe  gather  certain  major  premisses,  or  general  rules,  concerning 
this  element  of  'agreement,'  which  rules  will  accordingly  determine 
the  requirements  that  are  necessary  to  constitute  an  agreement,  the 
effect  of  error,  of  conditions,  or  other  collateral  terms,  and  so  forth. 
They  are  major  premisses  involving  a  countless  variety  of  other 
legal  rules,  which  will  assist  lis  in  fixing  the  conditions  under  which 
other  agreements,  say,  to  hire,  to  deliver,  to  institute  some  one  heir, 
and  many  others,  are  effectually  completed,  subject,  of  course,  to 
such  modifications  as  may  be  necessitated  by  a  different  set  of 
major  premisses.  Thus,  in  applying  the  method  of  analogy  to  a 
rule  of  law,  we  are,  at  the  same  time,  discovering  the  ingredients  of 
the  legal  relations.  The  method  of  analogy  does  not  mean  (as  the 
lay  mind  is  apt  to  imagine)  the  application  of  a  given  rule  of  law 
to  a  legal  relation  of  a  somewhat  similar  kind.  Such  an  analogy 
would  be  the  very  opposite  of  scientific  jurisprudence.  It  is  the 
application  of  a  given  rule  not  to  a  merely  similar  relation,  but  to 
the  identical  relation,m  so  far  as  the  identical  element  (to  which  the 
given  rule  had  already  assigned  its  proper  place)  is  traceable  in 
a  legal  relation  which  is  apparently  different. 

These,  then,  are  the  methods  by  which  jurisprudence  attains  to  a 
full  knowledge  of  the  materials  of  the  law,  and  filling  up  the  blanks 
which  it  finds  there,  moulds  the  whole  into  completeness.  The  dis- 
covery of  the  elements  which  recur  in  every  legal  relation  brings 
with  it  the  discovery  of  rules  of  law  which  meet  the  just  require- 
ments of  every  legal  relation.     The  mode  of  proceeding  may  be 


22  FUNDAMENTAL    CONCEPTIONS 

either  by  Analogy,  i.e.  by  the  discovery  of  those  elements  and  the 
analysis  of  legal  relations;  or  by  Inference,  i.e.  by  the  practical 
application  of  those  elements  and  the  synthesis  of  legal  relations. 
It  is  not  by  the  legislator,  but  by  scientific  jurisprudence,  that  the 
complexity  of  human  relations  is  regulated. 

Blackstoxe,  Commentaries,  I,  59-61. 

The  fairest  and  most  rational  method  to  interpret  the  will  of  the 
legislator  is  by  exploring  his  intentions  at  the  time  when  the  law 
was  made,  by  signs  the  most  natural  and  probable.^  And  these 
signs  are  either  the  words,  the  context,  the  subject-matter,  the  effects 
and  consequence,  or  the  spirit  and  reason  of  the  law.  Let  us  take 
a  short  view  of  them  all. 

1.  Words  are  generally  to  be  understood  in  their  usual  and  most 
known  signification;  not  so  much  regarding  the  propriety  of  gram- 
mar, as  their  general  and  popular  use.  Thus  the  law  mentioned  by 
Pufendorf  which  forbade  a  layman  to  lay  hands  on  a  priest,  was 
adjudged  to  extend  to  him  who  had  hurt  a  priest  with  a  weapon. 
Again,  terms  of  art,  or  technical  terms,  must  be  taken  according  to 
the  acceptation  of  the  learned  in  each  art,  trade,  and  science.  So 
in  the  act  of  settlement,  where  the  crown  of  England  is  limited  "to 
the  princess  Sophia  and  the  heirs  of  her  body,  being  Protestants," 
it  becomes  necessary  to  call  in  the  assistance  of  lawyers  to  ascertain 
the  precise  idea  of  the  words  "heirs  of  her  body,"  which,  in  a  legal 
sense,  comprise  only  certain  of  her  lineal  descendants. 

2.  If  words  happen  to  be  still  dubious,  we  may  establish  their 
meaning  from  the  context,  with  which  it  m^iy  be  of  singular  use  to 

1  "A  fundamental  misconception  prevails,  and  pervades  all  the  books  as  to 
the  dealing  of  the  courts  with  statutes.  Interpretation  is  generally  spoken  of  as 
if  its  chief  function  was  to  discover  what  the  meaning  of  the  Legislature  really 
was.  But  when  a  Legislature  has  had  a  real  intention,  one  way  or  another,  on 
a  point,  it  is  not  once  in  a  hundred  times  that  any  doubt  arises  as  to  what  its 
intention  was.  If  that  were  all  that  a  judge  had  to  do  with  a  statute,  interpre- 
tation of  statutes,  instead  of  being  one  of  the  most  difficult  of  a  judge's  duties, 
would  be  extremely  easy.  The  fact  is  that  the  difficulties  of  so-called  interpreta- 
tion arise  when  the  legislature  has  had  no  meaning  at  all;  when  the  question 
which  is  raised  on  the  statute  never  occurred  to  it;  when  what  the  judges  have  to 
do  is,  not  to  determine  what  the  Legislature  did  mean  on  a  point  which  was 
present  to  its  mind,  but  to  guess  what  it  would  have  intended  on  a  point  not 
present  to  its  mind,  if  the  point  had  been  present."  Gray,  Nature  and  Sources  of 
Law,  §370.  See  Austin,  Jurisprudence  (3  Ed.),  1023-1035;  Clark,  Practical 
Jurisprudence,  230-244. 


LAW  AND  MORALS  23 

compare  a  word,  or  a  sentence,  whenever  they  are  ambiguous, 
equivocal,  or  intricate.  Thus  the  proeme,  or  preamble,  is  often 
called  in  to  help  the  construction  of  an  act  of  Parliament.  Of  the 
same  nature  and  use  is  the  comparison  of  a  law  with  other  laws, 
that  are  made  by  the  same  legislator,  that  have  some  affinity  with 
the  subject,  or  that  expressly  relate  to  the  same  point.  Thus  when 
the  law  of  England  declares  murder  to  be  felony  without  benefit  of 
clergy,  we  must  resort  to  the  same  law  of  England  to  learn  what 
the  benefit  of  clergy  is;  and,  when  the  common  law  censures  simo- 
niacal  contracts,  it  affords  great  light  to  the  subject  to  consider 
what  the  canon  law  has  adjudged  to  be  simony. 

3.  As  to  the  subject  matter,  words  are  always  to  be  understood 
as  having  a  regard  thereto,  for  that  is  always  supposed  to  be  in  the  eye 
of  the  legislator,  and  all  his  expressions  directed  to  that  end.  Thus, 
when  a  law  of  our  Edward  III  forbids  all  ecclesiastical  persons  to 
purchase  provisions  at  Rome,  it  might  seem  to  prohibit  the  buyingof 
grain  and  other  victual;  but,  when  we  consider  that  the  statute  was 
made  to  repress  the  usurpations  of  the  papal  see,  and  that  the  nomi- 
nations to  benefices  by  the  pope  were  called  provisions,  we  shall  see 
that  the  restraint  is  intended  to  be  laid  upon  such  provisions  only. 

4.  As  to  the  effects  and  consequence,  the  rule  is,  that  where  the 
words  bear  either  none,  or  a  very  absurd  signification,  if  literally 
understood,  we  must  a  little  deviate  from  the  received  sense  of  them. 
Therefore  the  Bolognian  law,  mentioned  by  Pufendorf,  which  en- 
acted "that  whoever  drew  blood  in  the  streets  should  be  punished 
with  the  utmost  severity,"  was  held  after  long  debate  not  to  extend 
to  the  surgeon  who  opened  the  vein  of  a  person  that  fell  down  in 
the  street  in  a  fit. 

5.  But,  lastly,  the  most  universal  and  effectual  way  of  discover- 
ing the  true  meaning  of  a  law,  when  the  words  are  dubious,  is  by 
considering  the  reason  and  spirit  of  it;  or  the  cause  which  moved 
the  legislator  to  enact  it.  For  when  this  reason  ceases,  the  law 
itself  ought  likewise  to  cease  with  it.  An  instance  of  this  is  given 
in  a  case  put  by  Cicero,  or  whoever  was  the  author  of  the  treatise 
ascribed  to  Herennius.  There  was  a  law  that  those  who  in  a  storm 
forsook  the  ship  should  forfeit  all  property  therein;  and  that  the 
ship  and  lading  should  belong  entirely  to  those  who  stayed  in  it. 
In  a  dangerous  tempest  all  the  mariners  forsook  the  ship,  except 
only  one  sick  passenger,  who,  by  reason  of  his  disease,  was  unable 
to  get  out  and  escape.  By  chance  the  ship  came  safe  to  port.  The 
sick  man  kept  possession  and  claimed  the  benefit  of  the  law.     Now 


24  FUNDAMENTAL  CONCEPTIONS 

here  all  the  learned  agree,  that  the  sick  man  is  not  within  the  reason 
of  the  law;  for  the  reason  of  making  it  was,  to  give  encourage- 
ment to  such  as  should  venture  their  lives  to  save  the  vessel;  but 
this  is  a  merit  which  he  could  nc\er  pretend  to,  who  neither  stayed 
in  the  ship  on  that  account,  nor  contributed  anything  to  its  preser- 
vation. 

From  this  method  of  interpreting  laws  by  the  reason  of  them, 
arises  what  we  call  equity,  which  is  thus  defined  by  Grotius:  "the 
correction  or  that  wherein  the  law  (by  reason  of  its  universality) 
is  deficient."  For,  since  in  laws  all  cases  can  not  be  foreseen  or  ex- 
pressed, it  is  necessary  that,  when  the  general  decrees  of  the  law 
come  to  be  applied  to  particular  cases,  there  should  be  somewhere  a 
power  vested  of  defining  those  circumstances,  which  (had  they  been 
foreseen)  the  legislator  himself  would  have  expressed.  And  these 
are  the  cases  which,  according  to  Grotius,  lex  non  exact e  definit, 
sed  arhitrio  boni  viri  permittit. 

Sharswood's  Note  to  the  foregoing  passage. 

What  the  learned  commentator  here  says  is  certainly  inaccurate, 
if  it  leads  to  the  supposition  that  any  other  rules  of  interpretation 
are  applied  to  statutes  in  courts  of  equity  than  in  courts  of  law. 
On  the  contrary,  herein  equity  follows  the  law.  .  .  What  the 
commentator  does  mean,  perhaps,  is  what  is  generally  termed  the 
equity  of  a  statute,  which  is  in  reality  a  compendious  mode  of  ex- 
pressing his  fifth  rule  of  interpretation.  Those  cases  are  said  to  be 
within  the  equity  of  a  statute  which,  though  not  directly  compre- 
hended by  its  language,  are  nevertheless  within  the  intention  of  the 
lawgiver,  reached  by  its  reason  and  spirit. 

Salmond,  First  Principles  of  Jurisprudence,  83-84. 

We  have  defined  a  principle  of  law  as  a  principle  recognized  and 
acted  upon  by  the  State  in  the  administration  of  justice.  It  follows 
that  the  validity  of  a  legal  principle  is  entirely  independent  of  its 
truth.  It  is  a  principle  of  law,  not  because  it  is  true,  but  because 
it  is  accepted  and  acted  upon  by  the  State  as  true.  That  two  and 
two  make  fiv^e  is  open  to  grave  olijections  as  a  principle  of  mathe- 
matics, but  may  be  a  perfectly  valid  rule  of  law.  As  Hobbes  says: 
Authoritas  non  Veritas  facit  legem.  Nor  does  the  existence  of  a 
legal  principle  imply  or  involve  any  belief  in  its  truth.  To  accept 
a  principle  as  true  for  tlie  purposes  of  action  is  a  different  thing 


LAW  AND  MORALS  25 

from  believing  it  to  be  true;   for  though  a  principle  be  not  true,  it 
may  be  expedient  to  act  upon  it  as  if  it  were. 

Hence  a  divergence  of  law  from  truth  and  fact  is  in  all  cases 
possible,  and  in  many  cases  expedient,  and  in  all  legal  systems  such 
a  divergence  exists  to  a  very  great  extent.  We  have  ever  to  dis- 
tinguish that  which  is  in  deed  and  in  truth  from  that  which  is  in 
law.  Negligence  in  fact  is  not  necessarily  negligence  in  law  and 
vice  versa.  Fraud  in  fact  may  not  be  fraud  in  law;  malice  in  law 
may  not  be  malice  in  fact. 

Since  the  aim  of  the  administration  of  justice  is  the  maintenance 
or  protection  of  rights,  it  follows  that  among  the  most  important  of 
legal  principles  must  be  those  defining  rights.  Now  the  law  may 
recognize  as  a  right  that  which  is  not  so  in  truth,  or  may  fail  to 
recognize  one  which  in  truth  exists.  Hence  we  have  to  distinguish 
between  rights  in  fact  and  rights  in  law,  that  is  to  say,  between 
natural  rights  and  legal  rights.  And  similarly  of  wrongs,  duties, 
and  liabilities. 


26  HISTORY  OF  THE  COMMON  LAW 

CHAPTER  II 
HISTORY  OF  THE  COMMON  LAW 

There  are  two  great  systems  of  law,  the  Roman  or  Civil  Law  and  the  English 
or  Common  Law.  Roman  law,  beginning  as  the  law  of  the  city  of  Rome,  became 
the  law  of  the  Roman  Empire  and  thus  of  the  ancient  world,  and  eventually  by 
absorption  or  reception  from  the  twelfth  to  the  eighteenth  century,  the  law  of 
modern  continental  Europe.  It  is  now  the  foundation  or  a  principal  ingredient 
of  the  law  in  continental  Europe,  including  Turkey,  Scotland,  Central  and  South 
America,  Quebec  and  Louisiana,  and  all  Spanish,  Portuguese,  or  Dutch  colonies 
or  countries  settled  by  those  peoples.  The  common  law,  Germanic  in  origin, 
was  developed  by  the  English  courts  from  the  thirteenth  to  the  nineteenth  cen- 
turies, and  has  spread  over  the  world  with  the  English  race.  It  now  prevails  in 
England  and  Ireland;  the  United  States,  except  Louisiana;  Canada,  except 
Quebec;  Australia;  India,  except  over  Hindus  and  Mohammedans  as  to  inherit- 
ance and  family  law;  and  the  principal  English  colonies  except  in  South  Africa. 

Doctor  and  Student,  Dialogue  H,  Chap.  2  (first  printed  in 
Latin,  1523,  English  version  first  printed  in  1530). 
The  Common  law  is  taken  three  manner  of  ways.  First,  it  is 
taken  as  the  law  of  this  realm  of  England,  dissevered  from  all  other 
laws.  And  under  this  manner  taken  it  is  oftentimes  argued  in  the 
laws  of  England,  what  matters  ought  of  right  to  be  determined  by 
the  Common  law,  and  what  by  the  admiral's  court,  or  by  the 
spiritual  court :  and  also  if  an  obligation  bear  date  out  of  the  realm, 
as  in  Spain,  France,  or  such  other,  it  is  said  in  the  law,  and  truth  it 
is,  that  they  be  not  pleadable  at  the  Common  law.  Secondly,  the 
Common  law  is  taken  as  the  king's  courts  of  his  Bench,  or  of  the 
Common  Place:  and  it  is  so  taken  when  a  plea  is  removed  out 
of  anticnt  demesne,  for  that  the  land  is  frank-fee,  and  pleadable 
at  the  Common  law,  that  is  to  say,  in  the  king's  court,  and  not  in 
antient  demesne.  And  under  this  manner  taken,  it  is  oftentimes 
pleaded  also  in  base  courts,  as  in  Courts-Barons,  the  County, 
and  the  court  of  Piepowders,  and  such  other,  this  matter  or  that, 
&c.  ought  not  to  be  determined  in  that  court,  but  at  the  Common 
law,  that  is  to  say,  in  the  king's  courts,  &c.  Thirdly,  by  the  Com- 
mon law  is  understood  such  things  as  were  law  before  statute  made 
in  that  point  that  is  in  f|Ucstion;  so  that  that  point  was  holden  for 
law  by  the  general  or  ]:)articular  customs  and  maxims  of  the  realm, 
or  by  the  law  of  reason,  and  the  law  of  God,  no  other  law  added  to 
them  by  statute,  nor  otiierwise,  as  is  the  case  before  rehearsed  in 


SYSTEMS  OF  LAW  27 

the  first  chapter,  where  it  is  said,  that  at  the  Common  law,  tenant 
by  the  courtesy,  and  tenant  in  dower  were  punishable  of  waste, 
that  is  to  say,  that,  before  any  statute  of  waste  made,  they  were 
punishable  of  waste  by  the  grounds  and  maxims  of  the  law  used 
before  the  statute  made  in  that  point.  But  tenant  for  term  of  life, 
one  for  term  of  years,  were  not  punishable  by  the  said  grounds 
and  maxims,  till  by  the  statute  remedy  was  given  against  them ; 
and  therefore  it  is  said,  that  at  the  Common  law  they  were  not 
punishable  of  waste. 

Dillon,  Laws  and  Jurisprudence  of  England  and  Amer- 
ica, 155. 
Now  the  great  fact  which,  as  we  approach  this  subject,  meets  our 
view,  is  that  the  common  law  (including  in  the  phrase  "common 
law,"  as  here  used,  the  supplemental  equity  system  of  the  Court  of 
Chancery  which  grew  out  of  the  common  law  and  constitutes  a  part 
of  it)  underlies  the  whole  system  of  American  law  and  jurispru- 
dence. The  expression,  "the  common  law,"isused  in  various  senses: 
(a)  sometimes  in  distinction  from  statute  law;  (b)  sometimes  in 
distinction  from  equity  law ;  and  (c)  sometimes  in  distinction  from 
the  Roman  or  civil  law.  I  use  it  in  this  lecture  in  the  latter  sense. 
I  do  not  stop  to  inquire  how  the  common  law  came  to  be  intro- 
duced here  and  adopted  by  us.  I  deal  with  the  fact  as  it  exists, 
which  is  that  the  common  law  is  the  basis  of  the  laws  of  every 
state  and  territory  of  the  union,  with  comparatively  unimportant 
and  gradually  waning  exceptions.  And  a  most  fortunate  circum- 
stance it  is,  that,  divided  as  our  territory  is  into  so  many  states,  each 
supreme  within  the  limits  of  its  power,  a  common  and  uniform  gen- 
eral system  of  jurisprudence  underlies  and  pervades  them  all;  and 
this  quite  aside  from  the  excellences  of  that  system,  concerning 
which  I  shall  presently  speak.  My  present  point  is  this:  That 
the  mere  fact  that  one  and  the  same  system  of  jurisprudence  exists 
in  all  of  the  states,  is  of  itself  of  vast  importance,  since  it  is  a  most 
powerful  agency  in  promoting  commercial,  social,  and  intellectual 
intercourse,  and  in  cementing  the  national  unity. 

The  history  of  the  common-law  system  i  may  be  treated  of  conveniently  under 
five  heads:  (1)  English  law  before  the  Conquest,  (2)  the  development  of  the 
common  law,  (3)  the  development  of  equity,  (4)  the  law  merchant,  (5)  the  reform- 
movemcHt. 

1  Reference  may  be  made  to  Holdsworth,  History  of  English  Law  (3  vols. 
1903-1909).     This  supersedes  Reeve,  History  of   the  English  Law  (new  edition 


28  HISTORY  OF  THE  COMMON  LAW 


1.     ENGLISH    LAW  BEFORE  THE   CONQUEST 

Pollock,  English  Law  before  the  Norman  Conquest,  14 
Law  Quar.  Rev.  29L 
For  most  practical  purposes,  the  history  of  English  law  does  not 
begin  till  after  the  Norman  Conquest,  and  the  earliest  things  which 
modern  lawyers  are  strictly  bound  to  know  must  be  allowed  to  date 
only  from  the  thirteenth  century,  and  from  the  latter  half  of  it  rather 
than  the  former.  Nevertheless  a  student  who  does  not  look  further 
back  will  be  puzzled  by  relics  of  archaic  law  which  were  not  formally 
discarded  until  quite  modern  times,  and  he  may  easily  be  misled 
by  plausible  but  incorrect  explanations  of  them  such  as  have  been 
current  in  Blackstone's  time  and  much  later.  .  .  .  The  extreme 
antiquities  of  our  law  may  not  often  be  required  in  practice,  but 
it  is  not  safe  to  neglect  them  altogether,  and  still  less  safe  to  accept 
uncritical  explanations  when  it  does  become  necessary  to  consider 
them. 

From  the  Laws  of  Ethelbert  (Kent,  about  600  A.D.).^ 

[This  and  the  succeeding  extracts  from  the  Anglo-Saxon  laws  are 
from  Thorpe's  translation.] 

33.  If  there  be  seizing  by  the  hair,  let  there  be  L  scaetts  for  bot. 

34.  If  there  be  an  exposure  of  the  bone,  let  bot  be  made  with 
HI  shillings. 

35.  If  there  be  an  injury  of  the  bone,  let  bot  be  made  with  IV 
shillings. 

36.  If  the  outer  bone  be  broken,  let  bot  be  made  with  X  shillings. 

37.  If  it  be  both,  let  bot  be  made  with  XX  shillings. 

38.  If  a  shoulder  be  lamed,  let  bot  be  made  with  XXX  shillings. 

in  .3  vols.  1869).  Pollock  and  Maitland,  History  of  English  Law  Before  the  Reign 
of  Edward  I  (2  vols.  1895,  second  edition,  1898)  does  not  go  beyond  the  thirteenth 
century.  A  useful  collection  of  papers  on  particular  topics  is  Select  Essays  in 
Anglo-American  Legal  History  (3  vols.  1907,  1908,  1909).  For  a  brief  sketch  the 
student  may  be  recommended  to  Jenks,  Short  History  of  English  Law  (1912). 

^  The  best  edition  of  the  Anglo-Saxon  Laws  is  Liebermann,  Gesetze  der  Angel- 
sachsen  (2  vols.  1903,  1906).  There  is  an  English  edition  (text  and  translation) 
by  Thorpe,  Ancient  Laws  and  Institutes  of  England  (2  vols.  1840).  Reference 
may  be  made  also  to  Essays  in  Anglo-Saxon  Law  (by  Adams,  Lodge,  Young  and 
Laughlin,  1876). 


ENGLISH  LAW  BEFORE  THE  CONQUEST  29 

39.  If  an  ear  be  struck  off,  let  bot  be  made  with  XH  shillings. 

40.  If  the  other  ear  hear  not,  let  bot  be  made  with  XXV  shillings. 

41.  If  an  ear  be  pierced,  let  bot  be  made  with  III  shillings. 

42.  If  an  ear  be  mutilated,  let  bot  be  made  with  VI  shillings. 

43.  If  an  eye  be  (struck)  out,  let  bot  be  made  with  L  shillings. 

44.  If  a  mouth  or  an  eye  be  injured,  let  bot  be  made  with  XII 
shillings. 

45.  If  the  nose  be  pierced  let  bot  be  made  with  IX  shillings. 

46.  If  it  be  one  ala  let  bot  be  made  with  III  shillings. 

47.  If  both  be  pierced,  let  bot  be  made  with  VI  shillings. 

48.  If  the  nose  be  otherwise  mutilated,  for  each  let  bot  be  made 
with  VI  shillings. 

49.  If  it  be  pierced,  let  bot  be  made  with  VI  shillings. 

50.  Let  him  who  breaks  the  chin-bone  pay  for  it  with  XX  shil- 
lings. 

5L  For  each  of  the  four  front  teeth,  VI  shillings;  for  the  tooth 
which  stands  next  to  them,  IV  shillings;  for  that  which  stands  next 
to  that.  III  shillings;   and  then  afterwards,  for  each  a  shilling. 

52.  If  the  speech  be  injured,  XII  shillings.  If  the  collar  bone  be 
broken,  let  bot  be  made  with  VI  shillings. 

53.  Let  him  who  stabs  (another)  through  an  arm,  make  bot  with 
VI  shillings.  If  an  arm  be  broken,  let  him  make  bot  with  VI  shil- 
lings. 

54.  If  a  thumb  be  struck  off,  XX  shillings.  If  a  thumb  nail  be 
off,  let  bot  be  made  with  III  shillings.  If  the  shooting  (i.e.  fore) 
finger  be  struck  off,  let  bot  be  made  with  VIII  shiUings.  If  the 
middle  finger  be  struck  off,  let  bot  be  made  with  IV  shillings.  If 
the  gold  (i.e.  ring)  finger  be  struck  off,  let  bot  be  made  with  VI 
shilUngs.  If  the  little  finger  be  struck  off,  let  bot  be  made  with  III 
shillings. 

55.  For  every  nail  a  shilling. 

56.  For  the  smallest  disfigurement  of  the  face,  III  shillings;  and 
for  the  greater,  VI  shillings. 

57.  If  anyone  strike  another  with  his  fist  on  the  nose,  III  shil- 
lings. 

58.  If  there  be  a  bruise,  a  shilling;  if  he  receive  a  right  hand 
bruise,  let  him  (the  striker)  pay  a  shilling. 


30  HISTORY  OF  THE  COMMON  LAW 

59.  If  the  bruise  be  black  in  a  part  not  covered  by  the  clothes, 
let  bot  be  made  with  XXX  scaetts. 

60.  If  it  be  covered  by  the  clothes,  let  bot  for  each  be  made  with 
XX  scaetts.  1 

61.  If  the  belly  be  wounded  let  bot  be  made  with  XII  shillings; 
if  it  be  pierced  through,  let  bot  be  made  with  XX  shillings. 

From  the  Laws  of  Alfred  (Wessex,  about  890  A.D.). 

We  also  command :  that  the  man  who  knows  his  foe  to  be  home- 
siting  light  not  before  he  demand  justice  of  him.^  If  he  have  such 
power  that  he  can  beset  his  foe,  and  besiege  him  within,  let  him 
keep  him  within  for  VII  days,  and  attack  him  not,  if  he  will  remain 
within.     And  then,  after  VII  days,  if  he  will  surrender,  and  deliver 

^Compare  Salic  Law,  Tit.  XIV,  §§  1-3.  1.  If  anyone  have  assaulted  and 
plundered  a  free  man  and  it  be  proved  on  him,  he  shall  be  sentenced  to  2500 
denars,  which  make  63  shillings.  2.  If  a  Roman  have  plundered  a  Salian  Frank, 
the  above  law  shall  be  observed.  3.  But  if  a  Frank  have  plundered  a  Roman,  he 
shall  be  sentenced  to  35  shillings. 

"The  Laws  of  the  Twelve  Tables  seem  to  have  divided  Thefts  into  Manifest 
and  Non-Manifest,  and  to  have  allotted  extraordinarily  different  penalties  to  the 
offence  according  as  it  fell  under  one  head  or  the  other.  The  Manifest  Thief 
was  he  who  was  caught  within  the  house  in  which  he  had  been  pilfering,  or  who 
was  taken  while  making  off  to  a  place  of  safety  with  the  stolen  goods;  the  Twelve 
Tables  condemned  him  to  be  put  to  death  if  he  were  already  a  slave,  and,  if  he 
was  a  freeman,  they  made  him  the  bondsman  of  the  owner  of  the  property.  The 
Non-Manifest  Thief  was  he  who  was  detected  under  any  other  circumstances  than 
those  described;  and  the  old  code  simply  directed  that  an  offender  of  this  sort 
should  refund  double  the  value  of  what  he  had  stolen.  In  Gaius's  day  the  exces- 
sive severity  of  the  Twelve  Tables  to  the  Manifest  Thief  had  naturally  been 
much  mitigated,  but  the  law  still  maintained  the  old  principle  by  mulcting  him  in 
fourfold  the  value  of  the  stolen  goods,  while  the  Non-Manifest  Thief  still  con- 
tinued to  pay  merely  the  double.  The  ancient  lawgiver  doubtless  considered  that 
the  injured  proprietor,  if  left  to  himself,  would  inflict  a  very  different  punishment 
when  his  blood  was  hot  from  that  with  which  he  would  be  satisfied  when  the 
Thief  was  detected  after  a  considerable  interval;  and  to  this  calculation  the 
legal  scale  of  penalties  was  adjusted.  The  principle  is  precisely  the  same  as  that 
followed  in  the  Anglo-Saxon  and  other  Germanic  codes,  when  they  suffer  a  thief 
chased  down  and  caught  with  the  booty  to  be  hanged  or  decapitated  on  the  spot, 
while  they  exact  the  full  penalties  of  homicide  from  anybody  who  kills  him  after 
the  pursuit  has  been  intermitted.  These  archaic  distinctions  bring  home  to  us 
very  forcibly  the  distance  of  a  refined  from  a  rude  jurisprudence."  Maine, 
Ancient  Law,  379-380. 

*  "We  decree  and  direct  by  this  edict  that  he  who  intends  to  do  damage  to 
another,  or  to  injure  him,  shall  give  him  notice  at  least  three  days  before,  by  a 
safe  messenger."     Decree  of  the  Diet  of  the  German  Empire  at  Niirnberg  (1187). 


ENGLISH  LAW  BEFORE  THE  CONQUEST  31 

up  his  weapons,  let  him  be  kept  safe  for  XXX  days,  and  let  notice 
of  him  be  given  to  his  kinsmen  and  his  friends.  If,  however,  he 
flee  to  a  church,  then  let  it  be  according  to  the  sanctity  of  the 
church,  as  we  have  before  said  above.  But  if  he  have  not  sufficient 
power  to  besiege  him  within,  let  him  ride  to  the  ealdorman  and  beg 
aid  of  him.  If  he  will  not  aid  him,  let  him  ride  to  the  king  before 
he  fights.  In  like  manner  also,  if  a  man  come  upon  his  foe,  and  he 
did  not  before  know  him  to  be  home-staying;  if  he  be  willing  to 
deliver  up  his  weapons,  let  him  be  kept  for  XXX  days,  and  let 
notice  of  him  be  given  to  his  friends,  if  he  will  not  deliver  up  his 
weapons  then  he  may  attack  him.  If  he  be  willing  to  surrender, 
and  to  deliver  up  his  weapons,  and  anyone  after  that  attack  him, 
let  him  pay  as  well  wer  as  wound,  as  he  may  do,  and  wite,  and  let 
him  have  forfeited  his  maegship.  We  also  declare,  that  with  his 
lord  a  man  may  fight  without  risk  of  legal  consequences,  if  anyone 
attack  the  lord;  thus  may  the  lord  fight  for  his  man.  After  the 
same  wise,  a  man  may  fight  with  his  born  kinsman,  if  a  man  attack 
him  wrongfully,  except  against  his  lord.  That  we  do  not  allow. 
And  a  man  may  fight  without  legal  consequences,  if  he  find  another 
with  his  lawful  wife,  within  closed  doors,  or  under  one  covering, 
or  with  his  lawfully  born  daughter,  or  with  his  lawfully  born  sister, 
or  with  his  mother,  who  was  given  to  his  father  as  his  lawful  wife. 

From  Alfred  and  Guthrum's  Peace  (A.D.  879). 

2.  Then  is  this:  If  a  man  be  slain,  we  estimate  all  equally  dear, 
English  and  Danish,  at  viii  half  marks  of  pure  gold.  .  .  . 

3.  And  if  a  king's  thegn  be  accused  of  manslaying,  if  he  dare  to 
clear  himself,  let  him  do  that  with  xii  king's  thegns.  If  any  one 
accuse  that  man  who  is  of  less  degree  than  the  king's  thegn,  let 
him  clear  himself  with  xi  of  his  equals  and  with  one  king's  thegn. 
And  so  for  every  suit  which  may  be  for  more  than  iv  mancuses. 
And  if  he  dare  not,  let  him  pay  for  it  threefold  as  it  may  be  valued. 

From  the  Laws  of  Athelstan  (about  930). 

12.  And  we  have  ordained  that  no  man  buy  any  property  out  of 
port  over  xx  pence;  but  let  him  buy  there  within,  on  the  witness 
of  the  portreeve,  or  of  another  unlying  man;  or  further  on  the  wit- 
ness of  the  reeves  at  the  folkmote. 

From  the  "Ordinance  of  the  Hundred"  of  Edgar  (950-975). 

4.  And  we  have  ordained,  concerning  unknown  cattle;  that  no 
one  should  possess  it  without  the  testimonies  of  the  men  of  the 


32  HISTORY  OF  THE  COMMON  LAW 

hundred,  or  the  tithingman,  and  that  he  be  a  well-trusty  man;  and 
unless  he  have  either  of  these,  let  no  vouching  to  warranty  be  allowed 
him. 

Pollock,  English  Law  before  the  Norman  Conquest,  14 
Law  Quar.  Rev.  291,  292. 
The  courts  were  open  air  meetings  of  the  freemen  who  were 
bound  to  attend  them,  the  suitors  as  they  are  called  in  the  terms  of 
Anglo-Norman  and  later  mediaeval  law;  there  was  no  class  of  pro- 
fessional lawyers;  there  were  no  judges  in  our  sense  of  learned 
persons  especially  appointed  to  preside,  expound  the  law,  and  cause 
justice  to  be  done;  the  only  learning  available  was  that  of  the 
bishops,  abbots,  and  other  great  ecclesiastics.  This  learning, 
indeed,  was  all  the  more  available  and  influential  because  before 
the  Norman  Conquest,  there  were  no  separate  ecclesiastical  courts 
in  England.  There  were  no  clerks,  nor  apparently,  any  permanent 
officials  of  the  popular  courts;  their  judgments  proceeded  from  the 
meeting  itself,  not  from  the  presiding  officer,  and  were  regularly 
preserved  only  in  the  memory  of  the  suitors. 

From  the  Secltlar  Ordinance  of  Edgar. 

Cap.  1.  ...  This,  then,  is  first  what  I  will:  that  every  man 
be  worthy  of  folk  right,  as  well  poor  as  rich;  and  that  righteous 
dooms  be. judged  to  him;  and  let  there  be  such  remission  in  the  bot 
as  may  be  becoming  before  God  and  tolerable  before  the  world. 

Cap.  6.  And  let  the  hundred  gemot  be  attended  as  it  was  before 
fi?ced;  and  thrice  in  the  year  let  a  burh-gemot  be  held,  and  twice  a 
shire  gemot;  and  let  there  be  present  the  bishop  of  the  shire  and 
the  ealdorman,  and  there  both  expound  as  well  the  law  of  God  as 
the  secular  law. 

Extracts  from  Pollock,  English  Law  before  the  Norman 
Conquest,  14  Law  Quar.  Rev.  291. 
Some  considerable  time  before  the  Norman  Conquest,  but  how 
long  is  not  known,  bishops  and  other  great  men  had  acquired  the 
right  of  holding  courts  of  their  own  and  taking  the  profits  in  the 
shapes  of  fines  and  fees,  or  what  would  ha\c  been  the  king's  share 
of  the  profits.  My  own  belief  is  that  this  began  very  early,  but 
there  is  no  actual  proof  of  it.  Twenty  years  after  the  conquest, 
at  any  rate,  we  find  private  jurisdiction  constantly  mentioned  in 
the   Domesday  Survey,   and   common  in  every  part  of   England; 


ENGLISH  LAW  BEFORE  THE  CONQUEST  33 

about  the  same  time,  or  very  shortly  afterwards,  it  was  recognized 
as  a  main  ingredient  in  the  complex  and  artificial  system  of  feudal- 
ism. After  having  grown  in  England,  as  elsewhere,  to  the  point 
of  threatening  the  king's  supremacy,  but  having  happily  found  in 
Edward  I  a  master  such  as  it  did  not  find  elsewhere  before  the 
time  of  Richelieu,  the  manorial  court  is  still  with  us  in  a  form  atten- 
uated almost  to  the  point  of  extinction.  .  .  . 

Rigid  and  cumbrous  as  Anglo-Saxon  justice  was  in  the  things 
it  did  provide  for,  it  was,  to  modern  eyes,  strangely  defective  in  its 
lack  of  executive  power.  Among  the  most  important  functions  of 
courts  as  we  know  them  is  compelling  the  attendance  of  parties 
and  enforcing  the  fulfillment  both  of  final  judgments  and  of  inter- 
locutory orders  dealing  with  the  conduct  of  proceedings  and  the 
like.  Such  things  are  done  as  of  course  under  the  ordinary  author- 
ity of  the  court.  .  .  .  But  this  reign  of  law  did  not  come  by 
nature;  it  has  been  slowly  and  laboriously  won.  Jurisdiction 
began,  it  seems,  with  being  merely  voluntary,  derived  not  from  the 
authority  of  the  state  but  from  the  consent  of  the  parties.  People 
might  come  to  the  court  for  a  decision  if  they  agreed  to  do  so. 
They  were  bound  in  honor  to  accept  the  result ;  they  might  forfeit 
pledges  deposited  with  the  court;  but  the  court  could  not  compel 
their  obedience  any  more  than  a  tribunal  of  arbitration  appointed 
at  this  day  under  treaty  between  sovereign  states  can  compel  the 
rulers  of  those  states  to  fulfill  its  award.  Anglo-Saxon  courts  had 
got  beyond  this  most  early  stage,  but  not  very  far  beyond  it. 

The  only  way  to  bring  an  unwilling  adversary  before  the  court 
was  to  take  something  of  his  as  security  till  he  would  attend  the 
demand  ;^  and  practically  the  only  things  that  could  be  taken  with- 
out personal  violence  were  cattle.  Distress  in  this  form  was  prac- 
ticed and  also  regulated  from  a  very  early  time.  It  was  forbidden 
to  distrain  until  right  had  been  formally  demanded  .  .  .  and 
refused.     Thus  leave  of  court  was  required,  but  the  party  had  to 

^  "Among  the  various  modes  of  terminating  the  differences  between  nations 
by  forcible  means  short  of  actual  war,  are  the  following:  1.  By  laying  an  embargo 
or  sequestration  on  the  ships  and  goods  or  other  property  of  the  offending  nation 
found  within  the  territory  of  the  injured  state.  2.  By  taking  forcible  possession 
of  the  thing  in  controversy.  ...  3.  By  exercising  the  right  of  vindictive 
retaliation.  ...  4.  By  making  reprisals  upon  the  persons  and  things  belonging 
to  the  offending  nation  until  a  satisfactory  reparation  is  made  for  the  alleged 
injury."  Wheaton,  International  Law,  §  290.  On  distress  in  archaic  legal 
systems,  see  Maine,  Early  History  of  Institutions,  Lects.  IX  and  X. 


34  HISTORY  OF  THE  COMMON  LAW 

act  for  himself  as  best  he  could.  If  distress  failed  to  make  the 
defendant  appear,  the  only  resource  left  was  to  deny  the  law's  pro- 
tection to  the  stiff-necked  man  who  would  not  come  to  be  judged 
by  law.  He  might  be  outlawed,  and  this  must  have  been  strong 
enough  to  coerce  most  men  who  had  anything  to  lose  and  were  not 
strong  enough  to  \We  in  rebellion ;  but  still  no  right  could  be  done 
to  the  complainant  without  his  submission.  The  device  of  a  judg- 
ment by  default,  which  is  familiar  enough  to  us,  was  unknown,  and 
probably  would  not  have  been  understood. 

Final  judgm.ent,  when  obtained,  could  in  like  manner  not  be 
directly  enforced.  The  successful  party  had  to  see  to  gathering  the 
"fruits  of  judgment,"  as  we  say,  for  himself.  In  case  of  continued 
refusal  to  do  right,  he  might  take  the  law  into  his  own  hands,  in 
fact  wage  war  on  his  obstinate  opponent.  The  ealdorman's  aid, 
and  ultimately  the  king's,  could  be  invoked  in  such  extreme  cases 
as  that  of  a  wealthy  man,  or  one  backed  by  a  powerful  family, 
setting  the  law  at  open  defiance.  But  this  was  an  extraordinary 
measure,  analogous  to  nothing  in  the  regular  modern  process  of 
law. 

From  the  Laws  of  Ine  (about  690). 

Cap.  9.  If  any  one  take  revenge  before  he  demand  justice,  let 
him  give  up  what  he  has  taken  to  himself  and  pay  (the  damage 
done)  and  make  bot  with  30  shillings. 

From  the  Laws  of  Cnut  (1016-1035). 

Cap.  19.  And  let  no  man  take  any  distress,  either  in  the  shire  or 
out  of  the  shire  before  he  has  thrice  demanded  his  right  in  the  hun- 
dred. If  at  the  third  time  he  have  no  justice,  then  let  him  go  at  the 
fourth  time  to  the  shire-gemot,  and  let  the  shire  appoint  him  a 
fourth  term.  If  that  then  fail,  let  him  take  leave  either  from  hence 
or  thence,  that  he  may  seize  his  own. 

From  the  JuDiciA  Civitatis  Lundoniae  of  Athelstan 
(about  930). 
Cap.  viii.  2.  And  if  it  then  should  happen  that  any  kin  be  so 
strong  and  so  great,  within  land  or  without  land  .  .  .  that 
they  refuse  us  our  right,  and  stand  up  in  defence  of  a  thief,  that 
we  all  of  us  ride  thereto  with  the  reeve  within  whose  manung  it 
may  be. 


ENGLISH  LAW  BEFORE  THE  CONQUEST  35 

From  the  "Ordinance  of  the  Hundred"  of  Edgar. 

7.  In  the  hundred,  as  in  any  other  gemot,  we  ordain  that  folk- 
right  be  pronounced  in  every  suit,  and  that  a  term  be  fixed  when 
it  shall  be  fulfilled.  And  he  who  shall  break  that  term,  unless  it 
be  by  his  lord's  decree,  let  him  make  bot  with  xxx  shillings  and  on 
the  day  fixed  fulfill  that  which  he  ought  to  have  done  before. 

3.  And  the  man  who  neglects  this  and  denies  the  doom  of  the 
hundred,  and  the  same  be  afterwards  proved  against  him,  let  him 
pay  to  the  hundred  xxx  pence;  and  for  the  second  time  Ix  pence, 
half  to  the  hundred,  half  to  the  lord.  If  he  do  so  a  third  time,  let 
him  pay  half  a  pound ;  for  the  fourth  time,  let  him  forfeit  all  he 
owns  and  be  an  outlaw,  unless  the  king  allow  him  to  remain  in  the 
country. 

From  the  Laws  of  Athelstan  (about  960). 

12.  If  anyone  when  thrice  summoned  fail  to  attend  the  gemot, 
let  him  pay  a  penalty  to  the  king,  and  let  it  be  announced  seven 
days  before  the  gemot  is  to  be.  But  if  he  will  not  do  right  nor  pay 
the  penalty,  then  let  all  the  chief  men  belonging  to  the  burh  ride  to 
him  and  take  all  that  he  has  and  put  him  in  pledge.  But  if  anyone 
will  not  ride  with  his  fellows,  let  him  pay  penalty  to  the  king. 

Case  of  Eadwine  against  Eanwene,  before  the  County 
Court  at  Aylton.  Essays  in  Anglo-Saxon  Law,  365  (prior 
to  1033). 
Here  is  made  known  in  this  writing  that  a  shire-gemot  sat  at 
Aylton  in  King  Cnut's  day.  There  came  Bishop  Aethelstan,  and 
Ealdorman  Ranig,  and  Eadwine,  (son)  of  theealdorman,  and  Leof- 
wine,  son  of  Sulfsig,  and  Thurkil  White;  and  Tofig  Proud  came 
there  on  the  king's  errand;  and  there  was  sheriff  Bryning,  and 
Aegelweard  of  Frome,  and  Leofwine  of  Frome,  and  Godwin  of 
Stoke,  and  all  the  thanes  in  Herefordshire.  Then  came  there  Ead- 
wine son  of  Eanwene,  faring  to  the  gemot,  and  made  claim  against 
his  own  mother  for  a  piece  of  land;  namely,  Wellington  and  Crad- 
ley.  Then  asked  the  bishop  who  was  to  answer  for  his  mother ; 
then  answered  Thurkil  White  and  said  that  it  was  his  part  (to  do 
so),  if  he  knew  the  case.  As  he  did  not  know  the  case,  they  ap- 
pointed three  thanes  from  the  gemot,  and  should  ride  where  she 
was;  namely,  at  Fawley ;  these  were  Leofwine  of  Frome,  and  Aegel- 
sie  the  Red,  and  Winsie  Shipman.  And  when  they  came  to  her, 
then  asked  they  what  tale  she  had  about  the  lands  which  her  son 


36  HISTORY  OF  THE  COMMON  LAW 

sued  for.  Then  said  she  that  she  had  no  land  that  belonged  to  him 
in  any  way,  and  she  was  vehemently  angry  with  her  son,  and  called 
her  kinswoman,  Leofled,  Thurkil's  wife,  to  her,  and  said  to  her 
before  them  thus:  Here  sits  Leofled,  my  kinswoman,  whom  I 
grant  both  my  land  and  my  gold,  both  raiment  and  garment,  and 
all  that  I  own,  after  my  day.  And  she  afterwards  said  to  the 
thanes:  Do  thanelike  and  well.  Declare  my  errand  to  the  gemot 
before  all  the  good  men,  and  make  known  to  them  whom  I  have 
granted  my  land  to,  and  all  my  property;  and  to  my  son  nothing 
whatever;  and  ask  them  to  be  witness  to  this.  And  they  then  did 
so,  rode  to  the  gemot,  and  made  known  to  all  the  good  men  what 
she  had  laid  on  them.  Then  Thurkil  White  stood  up  in  the  gemot 
and  asked  all  the  thanes  to  give  his  wife  clear  the  lands  that  her 
kinswoman  granted  her,  and  they  did  so.  And  Thurkil  rode  then 
to  Saint  Aethelbert's  minster,  by  leave  and  witness  of  the  whole 
people,  and  caused  (this)  to  be  recorded  in  a  church  book. 

GLOSSARY 

Bot  —  Composition.  A  sum  of  money  paid  to  an  injured  person  or  his  kins- 
men to  buy  off  the  vengeance  that  would  otherwise  be  sought. 

Burh  —  Borough.     Castle.     Fortified  place. 

Burhbryce  —  Breach  of  the  peace  of  a  castle  or  fortified  house. 

Ceorl  - —  Churl.     A  common  free  man. 

Clear  himself  —  To  disprove  an  accusation  by  the  appointed  mode  of  trial  — • 
ordeal  or  compurgation. 

Edor  bryce  —  Breach  of  an  enclosure. 

Fall  man  —  Outlaw.     One  who  is  not  in  the  peace. 

Folk  mote  —  Assembly  of  the  free  men  in  the  county  court. 

Frith  —  Peace. 

Gafol  gclda  —  One  who  pays  tribute. 

Gebur  —  Peasant.     A  rustic  of  the  lowest  free  rank. 

Gemot  —  Any  temporal  (as  contrasted  with  ecclesiastical)  court,  that  is,  assembly 
of  the  free  men. 

Hynde  —  Twelve-hynde  man,  the  rank  of  a  wer  of  1200  shillings;  six-hyndeman, 
the  rank  of  a  wer  of  600  shillings. 

Manung  —  District  under  the  jurisdiction  of  a  reeve. 

Wer  —  The  pecuniary  estimation  of  a  man,  by  which  the  value  of  his  oath  and 
the  sum  to  be  paid  for  his  death  were  determined.  A  sum  paid  to  the  kindred 
of  a  person  killed,  to  buy  off  their  vengeance. 

Wita  —  One  of  the  great  men  of  the  realm  who  sits  in  the  great  council  to  advise 
the  king. 

Wite  —  A  fine.  A  payment  by  way  of  jiunishment.  A  payment  to  the  king  to 
buy  off  his  vengeance  for  an  affront  to  him. 


THE  KING'S  PEACE  37 

2.    THE    DEVELOPMENT    OF   THE    COMMON    LAW 

(a)     The  Kings  Peace  ^ 

From  the  Laws  of  Ethelbert  (600). 

Cap.  2.  If  the  king  call  his  people  to  him  and  any  one  there  do 
them  evil,  let  him  compensate  with  a  two-fold  bot  and  fifty  shillings 
to  the  king. 

Cap.  3.  If  the  king  drink  at  any  one's  house,  and  anyone  there 
do  any  offense,  let  him  make  two-fold  bot. 

Cap.  5.  If  a  man  kill  another  in  the  king's  mansion,  let  him  make 
bot  with   50  shillings. 

Cap.  8.    The  fine  for  breach  of  the  king's  protection  50  shillings. 

Cap.  13.  If  a  man  slay  another  in  an  eorl's  enclosure,  let  him 
make  bot  with  12  shillings. 

Cap.  15.    The  fine  for  breach  of  an  eorl's  protection  6  shillings. 

Cap.  17.  If  anyone  be  the  first  to  make  an  inroad  into  a  man's 
enclosure,  let  him  make  bot  with  6  shillings;  let  him  who  follows, 
with  3  shillings;    after,  each  a  shilling. 

From  the  Laws  of  Wihtraed  (Kent  about  700). 

Cap.  2.  That  the  fine  for  breach  of  the  protection  of  the  church 
be  50  shillings,  the  same  as  the  king's. 

From  the  Laws  of  Ine  (about  690). 

Cap.  6.  If  anyone  fight  in  the  king's  house,  let  him  be  liable  in 
all  his  property,  and  be  it  in  the  king's  doom  whether  he  shall  or 
shall  not  have  life.  If  any  one  fight  in  a  minster,  let  him  make 
bot  with  one  hundred  and  twenty  shillings.  If  any  one  fight  in  an 
ealdorman's  house,  or  in  any  other  distinguished  wita's,  let  him 
make  bot  with  LX  shillings,  and  pay  a  second  LX  shillings  as  wite. 
But  if  he  fight  in  a  gafol-gelda's  house,  or  in  a  gebur's,  let  him 
pay  CXX  shillings  as  wite  and  to  the  gebur  VI  shillings.  And 
though  it  be  fought  on  mid-field,  let  one  hundred  and  twenty  shil- 
lings be  given  as  wite.  But  if  they  have  altercation  at  a  feast,  and 
one  of  them  bear  it  with  patience  let  the  other  give  XXX  shillings 
as  wite. 

From  the  Laws  of  Alfred. 

Cap.  5.  We  also  ordain  to  every  church  which  has  been  hallowed 
by  a  bishop,  this  frith ;    if  a  fah-man  flee  to  or  reach  one,  that  for 

^  See  Howard,  The  King's  Peace  and  the  Local  Peace  Magistracy. 


38  HISTORY  OF  THE  COMMON  LAW 

seven  days  no  one  drag  him  out.  But  if  any  one  do  so,  then  let 
him  be  liable  in  the  king's  fine  for  breach  of  his  protection  and  the 
church-frith;  more  if  he  there  commit  more  wrong,  if,  despite  of 
hunger,  he  can  live;  unless  he  fight  his  way  out.  If  the  brethren 
have  further  need  of  their  church,  let  them  keep  him  in  another 
house,  and  let  not  that  have  more  doors  than  the  church.  Let  the 
church-ealdor  take  care  that  during  this  term  no  one  give  him  food.^ 
If  he  himself  be  willing  to  deliver  up  his  weapons  to  his  foes,  let 
them  keep  him  xxx  days,  and  let  them  give  notice  of  him  to  his 
kinsmen.  It  is  also  church-frith ;  if  any  man  seek  a  church  for  any 
of  those  offenses,  which  had  not  been  before  revealed,  and  there 
confess  himself  in  God's  name,  be  it  held  forgiven.  He  who  steals 
on  Sunday,  and  at  Yule,  or  at  Easter,  or  on  Holy  Thursday,  and 
on  Rogation  days;  for  each  of  these  we  will  that  the  bot  be  two- 
fold, as  during  Lent-fast. 

Cap.  7.  If  a  man  fight  in  the  king's  hall  or  draw  his  weapon 
and  he  be  taken;  be  it  in  the  king's  doom,  either  death,  or  life,  as 
he  may  be  willing  to  grant  him.  If  he  escape,  and  be  taken  again, 
let  him  pay  for  himself  according  to  his  wer-gild,  and  make  bot 
for  the  offense,  as  well  wer  as  wite,  according  as  he  may  have 
wrought. 

Cap.  15.  If  a  man  fight  before  an  archbishop  or  draw  his  weapon, 
let  him  make  bot  with  one  hundred  and  fifty  shillings.  If  before 
another  bishop  or  an  ealdorman  this  happens,  let  him  make  bot  with 
one  hundred  shillings. 

Cap.  38.  If  any  man  fight  before  the  king's  ealdorman  in  the 
gemot,  let  him  make  bot  with  wer  and  wite  as  it  may  be  right ;  and 
before  this  cxx  shillings  to  the  ealdorman  as  wite.  If  he  disturb 
the  folkmote  by  drawing  his  weapon,  cxx  shillings  to  the  ealdor- 
man as  wite.  If  aught  of  this  happen  before  a  king's  ealdorman's 
junior,  or  a  king's  priest,  xxx  shillings  as  wite. 

Cap.  40.  The  king's  burh-bryce  shall  be  cxx  shillings.  An  arch- 
bishop's ninety  shillings.  Any  other  bishop's,  and  an  ealdorman's, 
ix  shillings,  A  twelve-hynde  man's,  xxx  shillings.  A  six-hynde 
man's,  xv  shillings.  A  ceorl's  edor-bryce,  v  shillings.  If  aught 
of  this  happen  when  the  fyrd  is  out,  or  in  Lent  fast,  let  the  bot  be 
two-fold.  If  anyone  in  Lent  put  down  holy  law  among  the  people 
without  leave,  let  him  make  bot  with  cxx  shillings. 

^  See  Decree  of  the  Emperor  Henry  IV  Concerning  a  Truce  of  God  (1085)* 
Henderson,  Historical  Documents  of  the  Middle  Ages,  208. 


THE  KING'S  PEACE  39 

From  the  Laws  of  Ethelred  (978-1016). 

11.  Cap.  6.  If  the  frith  breach  be  committed  within  a  burh,  let 
the  inhabitants  of  the  burh  themselves  go  and  get  the  murderers 
living  or  dead,  or  their  nearest  kindred,  head  for  head.  If  they 
will  not,  let  the  ealdorman  go;  if  he  will  not,  let  the  king  go;  if  he 
will  not,  let  the  ealdordom  lie  in  unfrith. 

From  the  Secular  Dooms  of  Cnut. 

Cap.  83.  And  I  will  that  every  man  be  entitled  to  immunity  from 
molestation  to  the  gemot  and  from  the  gemot,  except  he  be  a  no- 
torious thief. 

From  the  Laws  of  Ethelred. 

VI.  Cap.  13.  Be  every  church  in  the  peace  of  God  and  of  the 
king,  and  of  all  Christian  folk. 

From  the  Leges  Edwardi  Confessoris  (10-43-1066.  But 
these  so-called  laws  of  Edward  the  Confessor  were  "ascer- 
tained" in  the  next  century). 

12.  The  peace  of  the  king  is  of  many  kinds.  One  given  by  his 
own  hand,  which  the  Enghsh  call  kinges  hand  sealde  grith.  An- 
other of  the  day  on  which  first  he  was  crowned.  This  last  eight 
days.  At  the  birth  of  our  Lord,  eight  days,  and  eight  at  Easter, 
and  eight  at  Whitsunday.  Another  is  given  by  its  special  writ. 
Another  which  the  four  highways  have;  namely,  Watlingstrete, 
Fosse,  Hikenildstrete,  Ermingstrete,  of  which  two  stretch  out  in 
the  length  of  the  kingdom  and  two  in  the  breadth.  Another  which 
the  waters  have,  by  the  navigation  on  which,  from  various  places, 
food  is  brought  to  the  cities  and  boroughs.  This  peace,  however, 
of  his  own  hand,  of  the  days  of  his  coronation,  and  of  the  writ,  is 
under  the  law  of  one  penalty.  In  like  manner  the  four  highways 
and  the  great  waters  in  regard  to  attack.  But  if  any  work  be  built 
let  it  be  destroyed  and  a  half  be  given  as  a  recompense.  Whoever 
has  broken  the  peace  in  the  eighteen  hundreds  of  the  Danelag,  his 
body  also  is  at  the  mercy  of  the  king,  by  the  law  of  England  his 
wer,  that  is  his  price,  and  the  recompense  for  the  slaying  of  those 
slain  he  shall  pay  to  the  lords  of  those  slain.  The  recompense  for 
slaying  a  serf  or  bondman  in  the  Danelag  is  twelve  ora;  in  the  case 
of  freemen,  three  marks.  By  the  English  law  to  the  king  or  arch- 
bishop, three  marks  for  their  men;  to  a  bishop  of  the  shire,  to  a 
nobleman  of  the  shire,  or  to  the  steward  of  the  king,  twenty  soli- 


40  HISTORY  OF  THE  COMMON  LAW 

darii;  to  the  other  barons,  ten  soHdarii.  Let  him  make  restitution 
to  the  parents  or  prepare  for  war.  Whence  the  EngUsh  had  a  say- 
ing: Bicge  spere  of  side  other  here,  which  means,  either  buy  from 
them  that  the  spear  be  covered  up,  or  bear  it.  But  let  the  peace  of 
the  four  highways  and  of  the  great  waters,  placed  in  the  greater 
judgment  of  penalties  which  we  have  above  mentioned,  be  held  for 
assault.  And  if  mills,  fisheries  or  any  other  things  whatever  be 
prepared  for  destroying  the  freedom  of  them,  let  these  things  be 
destroyed,  the  roads  and  waterways  repaired  and  a  recompense  to 
the  king  shall  not  be  forgotten.  Other  roads  from  city  to  city, 
from  borough  to  borough,  by  which  men  traveb  for  selling  their 
wares  or  other  business  of  their  own,  are  under  the  law  of  the  shire. 
And  if  anything  be  built  for  their  disturbance,  let  it  be  pulled  down 
to  the  ground  and  the  ways  repaired,  and  according  to  the  law  of 
the  shire,  to  the  sheriff  and  his  lieutenant  let  restitution  be  made. 
In  like  manner  in  regard  to  smaller  navigable  streams  with  those 
things  that  are  necessary  to  cities  and  boroughs,  namely,  woods  and 
the  rest.  They  shall  be  under  the  law  of  the  smaller  roads  in  regard 
to  penalties. 

From  the  Statutes  of  William  the  Conqueror.  (Hen- 
derson's translation.) 
3.  And  I  will  moreover  that  all  men  whom  I  ha\-e  brought 
with  me,  or  who  have  come  after  me,  shall  be  in  my  peace  and 
quiet.  And  if  one  of  them  shall  be  slain,  the  lord  of  the  murderer 
shall'seize  him  within  five  days  if  he  can;  but  if  not,  he  shall  begin 
to  pay  me  forty-six  marks  of  silver  so  long  as  his  possessions  shall 
hold  out.  But  when  the  possessions  of  the  lord  of  that  man  are 
at  an  end,  the  whole  hundred  in  which  the  slaying  took  place  shall 
pay  in  common  what  remains. 

Extracts  from  Pollock,  The  King's  Peace,  Oxford  Lectures,  65. 
First,  only  the  four  roads  are  the  king's;  then  every  common 
road  which  leads  to  the  king's  city,  borough,  castle  or  haven;  and 
as  most  roads  of  any  importance  must,  sooner  or  later,  answer  this 
description  if  followed  far  enough,  the  king's  highway  came  to  be, 
as  it  now  is,  merely  a  formal  or  picturesque  name  for  any  public 
road  whatever.  As  late  as  the  fourteenth  century,  however,  it  was 
an  opinion  still  held  Ijy  some  that  not  every  common  road  was 
royal,  insomuch  that  the  soil  and  freehold  of  a  common  road  could 
be  vested  in  an  individual  owner  only  if  it  was  not  via  regia.     The 


THE  KING'S  PEACE  41 

very  survival  of  the  term  "the  king's  highway"  shows  that  the  idea 
of  peculiar  legal  sanctity  clung  about  highways  in  popular  imagina- 
tion long  after  they  had  ceased  to  be  more  under  the  king's  peace 
than  any  other  English  ground.     .     .     . 

After  the  Conquest,  then,  the  various  forms  in  which  the  king's 
special  protection  had  been  given  disappear,  or  rather  merge  in  his 
general  protection  and  authority,  for  the  details  that  occur  in  the 
compilations  bearing  the  names  of  Henry  the  First  and  Edward  the 
Confessor,  welcome  as  they  are  by  way  of  supplement  to  earlier 
documents,  are  mere  echoes  of  traditions  no  longer  living.  The 
king's  peace  is  proclaimed  in  general  terms  at  his  accession.  But, 
though  generalized  in  its  application,  it  still  was  subject  to  a  strange 
and  inconvenient  limit  in  time.  The  fiction  that  the  king  is  every- 
where present,  though  not  formulated,  was  tacitly  adopted;  the 
protection  once  confined  to  his  household  was  extended  to  the  whole 
kingdom.  The  fiction  that  the  King  never  dies  was  yet  to  come. 
It  was  not  the  peace  of  the  Crown,  and  authority  having  continuous 
and  perpetual  succession,  that  was  proclaimed,  but  the  peace  of 
William  or  Henry.  When  William  or  Henry  died,  all  authorities 
derived  from  him  were  determined  or  suspended ;  and  among  other 
consequences,  his  peace  died  with  him.  What  this  abeyance  of  the 
king's  peace  practically  meant  is  best  told  in  the  words  of  the 
Chronicle,  which  says  upon  the  death  of  Henry  I  (anno  1135): 
"Then  there  was  tribulation  soon  in  the  land,  for  every  man  that 
could  forthwith  robbed  another."  Order  was  taken  in  this  matter 
(as  our  English  fashion  is)  only  when  the  inconvenience  became 
flagrant  in  a  particular  case.  At  the  time  of  Henry  Ill's  death  his 
son  Edward  was  in  Palestine.  It  was  intolerable  that  there  should 
be  no  way  of  enforcing  the  king's  peace  till  the  king  had  come  back 
to  be  crowned :  and  the  great  men  of  the  realm,  by  a  wise  audacity, 
took  upon  them  to  issue  a  proclamation  of  the  new  king's  name- 
forthwith.  This  good  precedent  being  once  made,  the  doctrine  of 
the  king's  peace  being  in  suspense  was  never  afterwards  heard  of. 

We  said  that  the  king's  peace  and  protection  had  become  tl.e  es- 
tablished right  of  every  peaceable  subject.  Nevertheless  a  trace  of 
the  archaic  ideas  persisted  as  long  as  the  art  of  common  law  plead- 
ing itself.  The  right  was  to  be  enjoyed  only  on  condition  of  being 
formally  demanded.  In  order  to  gi\-e  the  king's  courts  jurisdic- 
tion of  a  plea  of  trespass  it  was  needful  to  insert  in  the  writ  the 
words  vi  et  armis,  which  imported  a  breach  of  the  peace;    and  it 


42  HISTORY  OF  THE  COMMON  LAW 

was  usual,  if  not  necessary,  also  to  add  expressly  the  words  contra 
pacem  nostrum.  Without  the  allegation  of  force  and  arms  the  writ 
was  merely  "vicountiel,"  that  is,  the  sheriff  did  not  return  it  to  the 
Superior  Court  but  had  to  determine  the  matter  in  the  County 
Court.  By  so  many  steps  and  transformations  did  it  become  pos- 
sible for  Lambarde  and  Blackstone  after  him,  to  say,  with  uncon- 
scious inversion  of  the  historical  order  of  development,  and  as  if 
the  matter  were  in  itself  too  obvious  to  need  explanation:  "The 
king's  majesty  is,  by  his  office  and  dignity  royal,  the  principal  con- 
servator of  the  peace  within  all  his  dominions;  and  may  give  au- 
thority to  any  other  to  see  the  peace  kept,  and  to  punish  such  as 
break  it;  hence  it  is  usually  called  the  king's  peace." 

(b)   The  Kings  Writ 

When  the  king  was  applied  to  for  justice,  or  desired  to  vindicate  his  authority, 
he  issued  his  writ  to  the  sheriff  or  some  other  suitable  person  directing  what  was 
to  be  done.  In  ancient  times  executive  and  judicial  functions  were  not  distin- 
guished. The  king's  writ  was  used  for  all  purposes  connected  with  the  business 
of  administration,  the  writs  in  judicial  proceedings  orginally  being  in  no  way 
different  from  those  in  purely  administrative  affairs.  Gradually  a  regular  set  of 
writs  for  judicial  proceedings  grew  up,  which  in  time  became  fixed  in  form  and 
determined  the  scope  and  course  of  relief  in  the  king's  courts. 

Abbot  of  St.  Edmund  v.  Abbot  of  Peterborough  (reign  of 
William    I).     (Translated   from   Bigelow,    Placita  Anglo-Nor- 
mannica,  32.) 
William  King  of  England  to  the  Abbot  of  Peterborough,  Greet- 
ing:   I  command  and  require  you  that  you  permit  the  Abbot  of  St. 
Edmund  to  receive  sufficient  stone  for  his  church,  as  he  has  had 
hitherto,  and  that  you  cause  him  no  more  hindrance  in  drawing 
stone  to  the  water,  as  you  have  heretofore  done.     Witness  the 
Bishop  of  Durham. 

The  Abbot  of  Abingdon  v.  Men  of  Stanton  (1105  or  1107). 
(Translated  from  Bigelow,  Placita  Anglo-Normannica,  89.) 
Henry,  King  of  England,  to  Nigel  of  Oilly  and  William  Sheriff 
of  Oxford,  Greeting.  I  command  you  that  you  do  full  right  to 
the  Abbot  of  Abingdon  concerning  his  sluice  which  the  men  of 
Stanton  broke,  and  so  that  I  hear  no  more  complaint  thereof  for 
defect  of  right,  and  this  under  penalty  of  ten  pounds.  Witness 
Ralph  the  Chancellor,  at  Westminster. 


THE  KING'S  WRIT  43 

Abbot  Faritius  v.  Jordan  de  Sackville  (about  1108).  (Trans- 
lated from  Bigelow,  Placita  Anglo-Normannica,  99.) 
Henry  King  of  England  to  Jordan  de  Sackville,  Greeting.  I 
command  you  to  do  full  right  to  Abbot  Faritius  and  the  church  of 
Abingdon  concerning  the  land  which  you  took  from  them,  which 
Ralph  of  Cainesham  gave  to  the  church  in  alms;  and  unless  you 
do  this  without  delay,  I  command  that  Walter  Giffard  do  it,  and 
if  he  shall  not  have  done  it,  that  Hugh  of  Bocheland  do  it,  that  I 
may  hear  no  complaint  thereof  for  defect  of  right. 

Glan  viLL,  Treatise  on  the  Laws  and  Customs  of  the  Kingdom 
OF  England  (between  1187  and  1189).   (Beames's  translation.) 

Book  I,  chap.  V.  When  any  one  complains  to  the  king,  or  his 
justices,  concerning  his  Fee,  or  his  Freehold,  if  the  complaint  be 
such  as  be  proper  for  the  determination  of  the  King's  Court,  or  the 
King  is  pleased  that  it  should  be  decided  there,  then  the  party  com- 
plaining shall  have  the  following  writ  of  summons. 

Chap.  VI.  The  King  to  the  Sheriff,  Health.  Command  A  that, 
without  delay,  he  render  to  B  one  hyde  of  land,  in  such  a  vill,  of 
which  the  said  B  complains  that  the  aforesaid  A  hath  deforced  him; 
and  unless  he  does  so,  summon  him  by  good  summoners,  that  he 
be  there,  before  me  or  my  Justices,  in  crastino  post  octahas  clausi 
Paschae  at  such  a  place,  to  show  wherefore  he  has  failed ;  and  have 
there  the  summoners  and  this  writ. 

[He  then  sets  forth  and  explains  some  twelve  other  writs  issued 
in  the  king's  name,  marking  various  stages  in  the  litigation,  ending 
with  the  following:] 

Chap.  XX.  The  King  to  the  Sheriff,  Health.  I  command  you 
that  without  delay,  you  deliver  possession  to  N  of  one  hyde  of  land, 
in  such  a  vill,  which  he  claims  against  R  of  which  the  said  R  put 
himself  upon  my  assise,  because  the  said  N  has  recovered  that  land 
in  my  Court  by  a  recognition. 

Blackstone,  Commentaries,  III,  272. 

First,  then  of  the  original,  or  original  writ:  which  is  the  begin- 
ning or  foundation  of  the  suit.  When  a  person  hath  received  an 
injury,  and  thinks  it  worth  his  while  to  demand  a  satisfaction  for  it, 
he  is  to  consider  with  himself,  or  take  advice,  what  redress  the  law 
has  given  for  that  injury;  and  thereupon  is  to  make  application  or 
suit  to  the  crown,  the  fountain  of  all  justice,  for  that  particular 
specific  remedy  which  he  is  determined  or  advised  to  pursue.     As, 


44  HISTORY  OF  THE  COMMON  LAW 

for  money  due  on  bond,  an  action  of  debt;  for  goods  detained  with- 
out force,  an  action  of  detinue  or  trover;  or,  if  taken  with  force, 
an  action  of  trespass  vi  et  armis;  or  to  try  the  title  of  lands,  a  writ 
of  entry,  or  action  of  trespass  in  ejectment;  or  for  any  consequen- 
tial injury  received,  a  special  action  on  the  case.  To  this  end  he  is 
to  sue  out,  or  purchase  by  paying  the  stated  fees,  an  original,  or 
original  writ,  from  the  court  of  chancery,  which  is  the  officina  jus- 
titiae,  the  shop  or  mint  of  justice,  wherein  all  the  king's  writs  are 
framed.  It  is  a  mandatory  letter  from  the  king,  on  parchment, 
sealed  with  his  great  seal,  and  directed  to  the  sheriff  of  the  county 
where  injury  is  committed,  or  supposed  to  be  committed,  requiring 
him  to  command  the  wrong-doer  or  party  accused  either  to  do 
justice  to  the  complainant  or  else  to  appear  in  court  and  answer  the 
accusation  against  him.  Whatever  the  sheriff  does  in  pursuance 
of  this  writ,  he  must  return  or  certify  to  the  court  of  common  pleas, 
together  with  the  writ  itself;  which  is  the  foundation  of  the  juris- 
diction of  that  court,  being  the  king's  warrant  for  the  judges  to 
proceed  to  the  determination  of  the  cause.  For  it  was  a  maxim 
introduced  by  the  Normans,  that  there  should  be  no  proceedings 
in  common  pleas  before  the  king's  justices  without  his  original 
writ;  because  they  held  it  unfit  that  those  justices,  being  only  the 
substitutes  of  the  crown,  should  take  cognizance  of  anything  but 
what  was  thus  expressly  referred  to  their  judgment.  However, 
in  small  actions  below  the  value  of  forty  shillings,  which  are  brought 
in  the  court  baron  or  county  court,  no  royal  writ  is  necessary;  but 
the  foundation  of  such  suits  continues  to  be  (as  in  the  times  of  the 
Saxons)  not  by  original  writ,  but  by  plaint;  that  is,  by  a  private 
memorial  tendered  in  open  court  to  the  judge;  wherein  the  party 
injured  sets  forth  his  cause  of  action;  and  the  judge  is  bound  of 
common  right  to  administer  justice  therein,  without  any  special 
mandate  from  the  king.  Now,  indeed,  even  the  royal  writs  are 
held  to  be  demandable  of  common  right,  on  paying  the  usual  fees; 
for  any  delay  in  the  granting  them,  or  setting  an  unusual  or  ex- 
orbitant price  upon  them,  would  be  a  breach  of  magna  carta  c.  29, 
"nulli  vendemus,  nulli  negahimus  aut  di ffer emus,  jus titiam  vel  rectum." 

(c)  State  Law  and  Church  Law 

Extracts  from  Maitland,  Prologue  to  a  History  of  Eng- 
lish Law,  14  Law  Quar.  Rev.  13,  14,  20,  26. 
In  the  year  200  six  centuries  and  a  half  of  definite  legal  history, 
if  we  measure  only  from  the  Twelve  Tables,  were  consciously 


STATE  LAW  AND  CHURCH  LAW  45 

summed  up  in  the  living  and  growing  body  of  the  law.  Dangers 
lay  ahead.  We  notice  one  in  a  humble  quarter.  Certain  religious 
societies,  congregations  (ecclesiae)  of  non-conformists,  have  been 
developing  law,  internal  law,  w^ith  ominous  rapidity.  We  have  called 
it  law,  and  law  it  was  going  to  be;  but  as  yet  it  was,  if  the  phrase 
be  tolerable,  unlawful  law,  for  these  societies  had  an  illegal,  if  not 
a  criminal  purpose.  Spasmodically  the  imperial  law  was  enforced 
against  them;  at  other  times  the  utmost  that  they  could  hope  for 
from  the  state  was  that  in  the  guise  of  "benefit  and  burial  societies" 
they  would  obtain  some  protection  for  their  communal  property. 
But  internally  they  were  developing  what  was  going  to  be  a  system 
of  constitutional  and  governmental  law,  which  would  endow  the 
overseer  (episcopus)  of  every  congregation  with  manifold  powers. 
Also  they  were  developing  a  system  of  punitive  law,  for  the  offender 
might  be  excluded  from  all  participation  in  religious  rites,  if  not 
from  worldly  intercourse  with  the  faithful.  Moreover,  these  vari- 
ous communities  were  becoming  united  by  bonds  that  were  too 
close  to  be  federal.  In  particular,  that  one  of  them  which  had 
its  seat  in  the  capital  city  of  the  empire  was  winning  a  preeminence 
for  itself  and  its  overseer. 

About  the  year  500  there  was  in  Rome  a  monk  of  Scythian  birth 
w^ho  was  laboring  upon  the  foundations  of  the  Corpus  Juris  Canonici. 
He  called  himself  Dionysius  Exiguus.  He  was  an  expert  chronolo- 
gist  and  constructed  the  Dionysian  cycle.  He  was  collecting  and 
translating  the  canons  of  eastern  councils;  he  was  collecting  also 
some  of  the  letters  (decretal  letters  they  will  be  called)  that  had 
been  issued  by  the  popes  from  Sircius  onwards  (384-498).  This 
Collectio  Dionysiana  made  its  way  in  the  West.  Some  version  of 
it  may  have  been  the  book  of  canons  which  our  Archbishop  Theo- 
dore produced  at  the  council  of  Hertford  in  673.  A  version  of  it 
{Dionysio-Hadriana)  was  sent  by  Pope  Hadrian  to  Charles 
the  Great  in  774.  It  helped  to  spread  abroad  the  notion  that 
the  popes  can  declare,  even  if  they  cannot  make,  law  for  the 
universal  church,  and  thus  to  contract  the  sphere  of  secular 
jurisprudence. 

Slowly  and  by  obscure  processes  a  great  mass  of  ecclesiastical 
law  had  been  forming  itself.  It  rolled,  if  w^e  may  so  speak,  from 
country  to  country  and  took  up  new  matter  into  itself  as  it  went, 


46  HISTORY  OF  THE  COMMON  LAW 

for  bishop  borrowed  from  bishop  and  transcriber  from  transcriber. 
Oriental,  African,  Spanish,  GalHcan  canons  were  collected  into  the 
same  book,  and  the  decretal  letters  of  later  were  added  to  those  of 
earlier  popes.  Of  the  Dionysiana  we  have  already  spoken.  Another 
celebrated  collection  seems  to  have  taken  shape  in  the  Spain  of 
the  seventh  century;  it  has  been  known  as  the  Hispana  or  Isi- 
doriana,  for  without  sufficient  warrant  it  has  been  attributed  to 
that  St.  Isidore  of  Seville  (ob.  636),  w'hose  Origines  served  as  an 
encyclopaedia  of  jurisprudence  and  all  other  sciences.  The  His- 
pana made  its  way  into  France,  and  it  seems  to  have  already  com- 
prised some  spurious  documents  before  it  came  to  the  hands  of  the 
most  illustrious  of  all  forgers. 

Then  out  of  the  depth  of  the  ninth  century  emerged  a  book  which 
was  to  give  law  to  mankind  for  a  long  time  to  come.  Its  core  w^as 
the  Hispana;  but  into  it  there  had  been  foisted,  besides  other 
forgeries,  some  sixty  decretals  professing  to  come  from  the  very 
earliest  successors  of  St.  Peter.  The  compiler  called  himself  Isi- 
dorus  Mercator;  he  seems  to  have  tried  to  personate  Isidore  of 
Seville.  Many  guesses  have  been  made  as  to  his  name  and  time 
and  home.  It  seems  certain  that  he  did  his  work  in  Frankland  and 
near  the  middle  of  the  ninth  century.  He  has  been  sought  as  far 
west  as  le  Mans,  but  suspicion  hangs  thickest  over  the  church  of 
Reims.  The  false  decretals  are  elaborate  mosaics  made  up  out  of 
phrases  from  the  bible,  the  fathers,  genuine  canons,  genuine  decre- 
tals, the  West  Goth's  Roman  law-book;  but  all  these  materials 
wherever  collected,  are  so  arranged  as  to  establish  a  few  great 
principles:  the  grandeur  and  superhuman  origin  of  ecclesiastical 
power,  the  sacro-sanctity  of  the  persons  and  the  property  of  bishops, 
and,  though  this  is  not  so  prominent,  the  supremacy  of  the  bishop 
of  Rome.  Episcopal  rights  are  to  be  maintained  against  the 
chorepiscopi,  against  the  metropolitans,  and  against  the  secular 
power.  Above  all  (and  this  is  the  burden  of  the  song),  no  accusa- 
tion can  be  brought  against  a  bishop  so  long  as  he  is  despoiled  of 
his  see:  Spoliatiis  episcopus  ante  omnia  debet  restitui.  .  .  .  The  Isi- 
dorian  forgeries  were  soon  accepted  at  Rome.  The  popes  profited 
by  documents  which  taught  that  ever  since  the  apostolic  age  the 
bishops  of  Rome  had  been  declaring,  or  even  making,  law  for 
the  universal  church.  On  this  rock  or  on  this  sand  a  lofty  edifice 
was  reared. 

And  now  for  the  greater  part  of  the  Continent  comes  the  time 
when  ecclesiatical  law  is  the  only  sort  of  law  that  is  visibly  growing. 


STATE  LAW  AND  CHURCH  LAW  47 

The  stream  of  capitularies  ceased  to  flow;  there  was  none  to  legis- 
late ;  the  Prankish  monarchy  was  going  to  wreck  and  ruin ;  feudal- 
ism was  triumphant.  Sacerdotalism  also  was  triumphant,  and  its 
victories  were  closely  connected  with  those  of  feudalism.  The 
clergy  had  long  been  striving  to  place  themselves  beyond  the  reach 
of  the  state's  tribunals.  The  dramatic  struggle  between  Henry  H 
and  Becket  has  a  long  Frankish  prologue.  Some  concessions  had 
been  won  from  the  Merovingians;  but  still  Charles  the  Great  had 
been  supreme  over  all  persons  and  in  all  causes.  Though  his  realm 
fell  asunder,  the  churches  were  united,  and  united  by  a  principle 
that  claimed  a  divine  origin,.  They  were  rapidly  evolving  law  which 
was  in  course  of  time  to  be  the  written  law  of  an  universal  and  theo- 
cratic monarchy.  The  mass,  now  swollen  by  the  Isidorian  for- 
geries, still  rolled  from  diocese  to  diocese,  taking  up  new  matter 
into  itself.  It  became  always  more  lawyerly  in  form  and  texture 
as  it  appropriated  sentences  from  the  Roman  law-books  and  made 
itself  the  law  of  the  only  courts  to  which  the  clergy  would  yield 
obedience.  Nor  was  it  above  borrowing  from  Germanic  law,  for 
thence  it  took  its  probative  processes,  the  oath  with  oath-helpers 
and  the  ordeal  or  judgment  of  God.  Among  the  many  compilers 
of  manuals  of  church  law  three  are  especially  famous :  Regino,  abbot 
of  Prum  (906-915);  Burchard,  bishop  of  Worms  (1012-1023);  and 
Ivo,  bishop  of  Chartres  (ob.  1117).  They  and  many  others  pre- 
pared the  way  for  Gratian,  the  maker  of  the  church's  Digest,  and 
events  were  deciding  that  the  church  should  also  have  a  Code  and 
abundant  Novels.  In  an  evil  day  for  themselves  the  German  kings 
took  the  papacy  from  the  mire  into  which  it  had  fallen,  and  soon 
the  work  of  issuing  decretals  was  resumed  with  new  vigor.  At  the 
date  of  the  Norman  Conquest  the  flow  of  these  edicts  was  becoming 
rapid. 

Burn,  Ecclesiastical  Law,  II,  31-34, 

1.  Por  the  first  300  years  after  Christ,  the  distinction  of  ecclesias- 
tical or  spiritual  causes,  in  point  of  jurisdiction,  did  not  begin; 
for  at  that  time  no  such  distinction  was  heard  of  in  the  Christian 
world;  for  the  causes  of  testaments,  matrimony,  bastardy,  adul- 
tery, and  the  rest,  which  are  called  ecclesiastical  or  spiritual  causes, 
were  merely  civil,  and  determined  by  the  rules  of  the  civil  law,  and 
subject  only  to  the  jurisdiction  of  the  civil  magistrate.  But  after 
the  emperors  were  become  Christian,  out  of  a  zeal  and  desire  they 
had  to  grace  and  honor  the  learned  and  godly  bishops  of  that  time, 


48  HISTORY  OF  THE  COMMON  LAW 

they  were  pleased  to  single  out  certain  special  causes,  wherein 
they  granted  jurisdiction  to  bishops;  namely,  in  cases  of  tithes, 
because  paid  to  men  of  the  church ;  in  causes  of  matrimony,  because 
marriages  were  for  the  most  part  solemnized  in  the  church ;  in  causes 
testamentary,  because  testaments  were  many  times  made  in 
extremis,  when  churchmen  were  present  giving  spiritual  comfort 
to  the  testator,  and  therefore  they  were  thought  the  fittest  persons 
to  take  the  probates  of  such  testaments:  and  so  of  the  rest.  Yet 
these  bishops  did  not  then  proceed  in  these  causes  according  to  the 
canons  and  decrees  of  the  church  (for  the  canon  law  was  not  then 
made),  but  according  to  the  rules  of  the  imperial  law,  and  as  the 
civil  magistrate  proceeded  in  other  causes. 

2.  Accordingly,  in  this  kingdom,  in  the  Saxon  times,  before  the 
Norman  Conquest,  there  was  no  distinction  of  jurisdictions;  but 
all  matters,  as  well  spiritual  as  temporal,  were  determined  in  the 
county  court,  called  the  sheriff's  tourn,  where  the  bishop  and  earl 
(or  in  his  absence  the  sheriff)  sat  together;  or  else  in  the  hundred 
court,  which  was  held  in  like  manner  before  the  lord  of  the  hundred 
and  ecclesiastical  judge. 

For  the  ecclesiastical  ofificers  took  their  limits  of  jurisdiction  from 
a  like  extent  of  the  civil  powers.  Most  of  the  old  Saxon  bishoprics 
were  of  equal  bounds  with  the  distinct  kingdoms.  The  arch- 
deaconries, when  first  settled  into  local  districts,  were  commonly 
fitted  to  the  respective  counties.  And  rural  deanries,  before  the 
Conquest,  were  correspondent  to  the  political  tithings.  Their 
spiritual  courts  were  held  with  a  like  reference  to  the  administra- 
tion of  civil  justice.  The  synods  of  each  province  and  diocese  were 
held  at  the  discretion  of  the  metropolitan  and  the  bishop,  as  great 
councils  at  the  pleasure  of  the  prince.  The  visitations  were  first 
united  to  the  civil  inquisitions  in  each  county;  and  afterwards, 
when  the  courts  of  the  earl  and  bishop  were  separated,  yet  still 
the  visitations  were  held  like  the  sheriff's  tourns,  twice  a  year,  and 
like  them  too,  after  Easter  and  Michaelmas,  and  still  with  nearer 
likeness  the  greater  of  them  was  at  Easter.  The  rural  chapters 
were  also  held  like  the  inferior  courts  of  the  hundred,  every  three 
weeks;  then,  and  like  them  too,  they  were  changed  into  monthly, 
and  at  last  into  quarterly  meetings.  Nay,  and  a  prime  visitation 
was  held  commonly,  like  the  prime  folcmote  or  sheriff's  tourn,  on 
the  very  calends  of  May, 

And  accordingly  Sir  Henry  Spelman  observes,  that  the  bishop 
and  the  earl  sat  together  in  one  court,  and  heard  jointly  the  causes 


STATE  LAW  AND  CHURCH  LAW  49 

of  church  and  commonwealth ;  as  they  yet  do  in  parHament.  And 
as  the  bishop  had  twice  in  the  year  two  general  synods,  wherein  all 
the  clergy  of  his  diocese  of  all  sorts  were  bound  to  resort  for  matters 
concerning  the  church;  so  also  there  was  twice  in  the  year  a  gen- 
eral assembly  of  all  the  shire  for  matters  concerning  the  common- 
wealth, wherein  without  exception  all  kinds  of  estates  were  required 
to  be  present;  dukes,  earls,  barons,  and  so  downward  of  the  laity; 
and  especially  the  bishop  of  that  diocese  among  the  clergy.  For  in 
those  days  the  temporal  lords  did  often  sit  in  synods  with  the 
bishops,  and  the  bishops  in  like  manner  in  the  course  of  the  tem- 
poralty,  and  were  therein  not  only  necessary,  but  the  principal 
judges  themselves.  Thus  by  the  laws  of  King  Canutus,  "the  shyre- 
gemot  (for  so  the  Saxons  called  this  assembly  of  the  whole  shire) 
shall  be  kept  twice  a  year  and  oftener  if  need  require,  wherein  the 
bishop  and  the  alderman  of  the  shire  shall  be  present,  the  one  to 
teach  the  laws  of  God,  the  other  the  law  of  the  land."  And  among 
the  laws  of  King  Henry  I  it  is  ordained,  "first,  let  the  laws  of  true 
Christianity  (which  we  call  the  ecclesiastical)  be  fully  executed 
with  due  satisfaction;  then  let  the  pleas  concerning  the  king  be  dealt 
with ;  and  lastly,  those  between  party  and  party :  and  whomsoever 
the  church  synod  shall  find  at  variance,  let  them  either  make  accord 
between  them  in  love,  or  sequester  them  by  their  sentence  of  ex- 
communication." Whereby  it  appeareth,  that  ecclesiastical  causes 
were  at  that  time  under  the  cognizance  of  this  court.  But  these, 
he  says,  he  takes  to  be  such  ecclesiatiscal  causes  as  were  grounded 
upon  the  ecclesiastical  laws  made  by  the  kings  themselves  for  the 
government  of  the  church  (for  many  such  there  were  in  almost 
every  king's  reign),  and  not  for  matters  rising  out  of  the  Roman 
canons,  which  haply  were  determinable  only  before  the  bishop  and 
his  ministers.  And  the  bishop  first  gave  a  solemn  charge  to  the 
people  touching  ecclesiastical  matters,  opening  unto  them  the  rights 
and  reverence  of  the  church,  and  their  duty  therein  towards  God 
and  the  king,  according  to  the  word  of  God.  Then  the  alderman 
in  like  manner  related  unto  them  the  laws  of  the  land,  and  their 
duty  towards  God,  the  king  and  commonwealth,  according  to  the 
rule  and  tenure  thereof. 

3.   The  separation  of  the  ecclesiastical  from  the  temporal  courts  was 
made  by  William  the  Conqueror.^     And  as  from  thence  we  are  to 

1  But  see  Lichtenstein,  The  Date  of  Separation  of  Ecclesiastical  and   Lay 
Jurisdiction  in  England,  3  111.  Law  Rev.  347. 


50  HISTORY  OF  THE  COMMON  LAW 

date  this  great  alteration  in  our  constitution,  it  is  judged  necessary  to 
recite  the  charter  of  separation  \erbatim ;  which  is  as  followeth :  ^ 

"WilUam,  by  the  grace  of  God,  King  of  the  EngHsh,  to  R.  Bainard 
and  G.  de  Magnavilla,  and  P.  de  Valoines,  and  to  my  other  faith- 
ful ones  of  Essex  and  of  Hertfordshire  and  of  Middlesex,  Greeting. 
Know  all  of  you  and  my  other  faithful  ones  who  remain  in  Eng- 
land, that  in  a  common  council  and  by  the  advice  of  the  archbishops 
and  bishops,  and  abbots,  and  of  all  the  princes  of  my  kingdom,  I 
have  decided  that  the  episcopal  laws,  which  up  to  my  time  in  the 
kingdom  of  the  English  have  not  been  right  or  according  to  the 
precepts  of  the  holy  canons,  shall  be  emended.  Wherefore  I  com- 
mand, and  by  royal  authority  decree,  that  no  bishop  or  archdeacon 
shall  any  longer  hold,  in  the  hundred  court,  pleas  pertaining  to  the 
episcopal  laws,  nor  shall  they  bring  before  the  judgment  of  secular 
men  any  case  which  pertains  to  the  rule  of  souls;  ]:)Ut  whoe\er 
shall  be  summoned,  according  to  the  episcopal  laws,  in  any  case  or 
for  any  fault,  shall  come  to  the  place  which  the  bishop  shall  choose 
or  name  for  this  purpose,  and  shall  there  answer  in  his  case  or  for 
his  fault,  and  shall  perform  his  law  before  God  and  his  bishop  not 
according  to  the  hundred  court,  but  according  to  the  canons  and 
the  episcopal  laws.  But  if  any  one,  elated  by  pride,  shall  scorn 
or  be  unwilling  to  come  before  the  judgment  seat  of  the  bishop, 
he  shall  be  summoned  once  and  a  second  and  a  third  time;  and  if 
not  even  then  he  come  to  make  amends,  he  shall  be  excommuni- 
cated; and,  if  it  be  needful  to  give  effect  to  this,  the  power  and 
justice  of  the  king  or  the  sheriff  shall  be  called  in.  But  he  who 
was  summoned  before  the  judgment  seat  of  the  bishop  shall,  for 
each  summons,  pay  the  episcopal  fine.  This  also  I  forbid  and  by 
my  authority  interdict,  that  any  sheiiff,  or  prevost,  or  minister  of 
the  king,  or  any  layman  concern  himself  in  the  matter  of  laws  which 
pertain  to  the  bishop,  nor  shall  any  layman  summon  another  man 
to  judgment  apart  from  the  jurisdiction  of  the  bishop.  But  judg- 
ment shall  be  passed  in  no  place  except  within  the  episcopal  see, 
or  in  such  place  as  the  bishop  shall  fix  upon  for  this  purpose." 

This  charter,  Mr.  Selden  says,  was  recited  in  a  close  roll  of  King 
Richard  11,  and  then  confirmed. 

Constitutions  of  Clarendon  (1164),  Henderson's  translation. 

In  the  year  1164  from  the  Incarnation  of  our  Lord,  in  the  fourth 

year  of  the  papacy  of  Alexander,  in  the  tenth  year  of  the  most  illus- 

'  I  have  substituted  Henderson's  translation  here  for  the  original  Latin. 


STATE  LAW  AND  CHURCH  LAW  51 

trious  king  of  the  English,  Henry  H,  in  the  presence  of  that  same 
king,  this  memorandum  or  inquest  was  made  of  some  part  of  the 
customs  and  liberties  and  dignities  of  his  predecessors,  viz.,  of 
King  Henry  his  grandfather  and  others,  which  ought  to  be  observed 
and  kept  in  the  kingdom.  And  on  account  of  the  dissensions  and 
discords  which  had  arisen  between  the  clergy  and  the  Justices 
of  the  lord  king,  and  the  barons  of  the  kingdom,  concerning  the 
customs  and  dignities,  this  inquest  was  made  in  the  presence  of  the 
archbishops  and  bishops,  and  clergy  and  counts,  and  barons  and 
chiefs  of  the  kingdom.  .  .  . 

A  certain  part,  moreover,  of  the  customs  and  dignities  of  the 
kingdom  which  were  examined  into,  is  contained  in  the  present 
writing.     Of  which  part  these  are  the  paragraphs: 

1.  If  a  controversy  concerning  advowson  and  presentation  of 
churches  arise  between  laymen,  or  between  laymen  and  clerks,  or 
between  clerks,  it  shall  be  treated  of  and  terminated  in  the  court 
of  the  lord  king. 


3.  Clerks  charged  and  accused  of  anything,  being  summoned 
by  the  Justice  of  the  king,  shall  come  into  his  court,  about  to  respond 
there  for  what  it  seems  to  the  king's  court  that  he  should  respond 
there;  and  in  the  ecclesiastical  court  for  what  it  seems  he  should 
respond  there;  so  that  the  Justice  of  the  king  shall  send  to  the  court 
of  the  holy  church  to  see  in  what  manner  the  affair  will  there  be 
carried  on.  And  if  the  clerk  shall  be  convicted,  or  shall  confess, 
the  church  ought  not  to  protect  him  further. 


5.  The  excommunicated  shall  not  give  a  pledge  as  a  permanency* 
nor  take  an  oath,  but  only  a  pledge  and  surety  of  presenting  them- 
selves before  the  tribunal  of  the  church,  that  they  may  be  absolved. 

6.  Laymen  ought  not  to  be  accused  unless  through  reliable  and 
legal  accusers  and  witnesses  in  the  presence  of  the  bishop,  in  such 
wise  that  the  archdean  do  not  lose  his  right,  nor  any  thing  which 
he  ought  to  have  from  it.  And  if  those  who  are  inculpated  are 
such  that  no  one  wishes  or  dares  to  accuse  them,  the  sheriff,  being 
requested  by  the  bishop,  shall  cause  twelve  lawful  men  of  the 
neighborhood  or  town  to  swear  in  the  presence  of  the  bishop, 
that  they  will  make  manifest  the  truth  in  this  matter,  according  to 
their  conscience. 


52  HISTORY  OF  THE  COMMON  LAW 

7.  No  one  who  holds  of  the  king  in  chief,  and  no  one  of  his 
demesne  servitors,  shall  be  excommunicated,  nor  shall  the  lands 
of  any  one  of  them  be  placed  under  an  interdict,  unless  first  the  lord 
king,  if  he  be  in  the  land,  or  his  Justice,  if  he  be  without  the  kingdom, 
be  asked  to  do  justice  concerning  him:  and  in  such  way  that  what 
shall  pertain  to  the  king's  court  shall  there  be  terminated;  and 
with  regard  to  that  which  concerns  the  ecclesiastical  court,  he  shall 
be  sent  thither  in  order  that  it  may  there  be  treated  of. 

8.  Concerning  appeals,  if  they  shall  arise,  from  the  archdean 
they  shall  proceed  to  the  bishop,  from  the  bishop  to  the  archbishop. 
And  if  the  archbishop  shall  fail  to  render  justice,  they  must  come 
finally  to  the  lord  king,  in  order  that  by  his  command  the  con- 
troversy may  be  terminated  in  the  court  of  the  archbishop,  so  that 
it  shall  not  proceed  further  without  the  consent  of  the  lord  king. 

9.  If  a  quarrel  arise  between  a  clerk  and  a  layman  or  between  a 
layman  and  a  clerk  concerning  any  tenement  which  the  clerk  wishes 
to  attach  to  the  church  property,  but  the  layman  to  a  lay  fee:  by 
the  inquest  of  twelve  lawful  men,  through  the  judgment  of  the 
chief  Justice  of  the  king,  it  shall  be  determined,  in  the  presence  of 
the  Justice  himself  whether  the  tenement  belongs  to  the  church 
property,  or  to  the  lay  fee.  And  if  it  be  recognized  as  belonging  to 
the  church  property,  the  case  shall  be  pleaded  in  the  ecclesiastical 
court;  but  if  to  the  lay  fee,  unless  both  are  holders  from  the  same 
bishop  or  baron,  the  case  shall  be  pleaded  in  his  court;  in  such  way 
that,  on  account  of  the  inquest  made,  he  who  was  first  in  possession 
shall  not  lose  his  seisin,  until,  through  the  pleading,  the  case  shall 
have  been  proven. 

10.  Whoever  shall  belong  to  the  city  or  castle  or  fortress  or 
demesne  manor  of  the  lord  king,  if  he  be  summoned  by  the  arch- 
dean  or  bishop  for  any  offense  for  which  he  ought  to  respond  to 
them,  and  he  be  unwilling  to  answer  their  summonses,  it  is  per- 
fectly right  to  place  him  under  the  interdict;  but  he  ought  not  to  be 
excommunicated  until  the  chief  servitor  of  the  lord  king  of  that  town 
shall  be  asked  to  compel  him  by  law  to  answer  the  summonses. 
And  if  the  servitor  of  the  king  be  negligent  in  this  matter,  he  himself 
shall  be  at  the  mercy  of  the  lord  king,  and  the  bishop  may  thence- 
forth visit  the  man  who  was  accused  with  ecclesiastical  justice. 

13.  If  any  of  the  nobles  of  the  kingdom  shall  have  dispossessed 
an  archbishop  or  bishop  or  archdean,  the  lord  king  should  compel 
them  personally,  or  through  their  families,  to  do  justice.     And  if 


STATE  LAW  AND  CHURCH  LAW  53 

by  chance  any  one  shall  have  dispossessed  the  lord  king  of  his  right, 
the  archbishops  and  bishops  and  archdeans  ought  to  compel  him  to 
render  satisfaction  to  the  lord  king. 

14.  A  church  or  cemetery  shall  not,  contrary  to  the  king's  justice, 
detain  the  chattels  of  those  who  are  under  penalty  of  forfeiture  to 
the  king,  for  they  (the  chattels)  are  the  king's,  whether  they  are 
found  within  the  churches  or  without  them. 

15.  Pleas  concerning  debts  which  are  due  through  the  giving  of  a 
bond,  or  without  the  giving  of  a  bond,  shall  be  in  the  jurisdiction  of 
the  king. 

Moreover,  a  record  of  the  aforesaid  royal  customs  and  dignities 
has  been  made  by  the  aforesaid  archbishops  and  bishops,  and 
counts  and  barons,  and  nobles  and  elders  of  the  kingdom,  at  Claren- 
don on  the  fourth  day  before  the  Purification  of  the  blessed  Mary 
the  perpetual  Virgin;  the  lord  Henry  being  there  present  with  his 
father  the  lord  king.  There  are,  moreover,  many  other  and  great 
customs  and  dignities  of  the  holy  mother  church,  and  of  the  lord 
king,  and  of  the  barons  of  the  kingdom,  which  are  not  contained  in 
this  writ.  And  may  they  be  preserved  to  the  holy  church,  and  to 
the  lord  king,  and  to  his  heirs,  and  to  the  barons  of  the  kingdom, 
and  may  they  be  inviolably  observed  for  ever. 

Caudrey's  Case,  King's  Bench  (1591),  5  Rep.  la,  Sb-9b. 

And  therefore  by  the  ancient  laws  of  this  realm,  this  kingdom  of 
England  is  an  absolute  empire  and  monarchy  consisting  of  one  head, 
which  is  the  King,  and  of  a  body  politic,  compact  and  compounded 
of  man\%  and  almost  infinite  several,  and  yet  well  agreeing  members: 
all  which  the  law  divideth  into  two  several  parts,  that  is  to  say, 
"the  clergy  and  the  laity,"  both  of  them,  next  and  immediately 
under  God,  subject  and  obedient  to  the  head:  also  the  kingly  head 
of  this  politic  body  is  instituted  and  furnished  with  plenary  and 
entire  power,  prerogative  and  jurisdiction,  to  render  justice  and 
right  to  every  part  and  member  of  this  body,  of  what  estate,  degree, 
or  calling  soever  in  all  causes  ecclesiastical  or  temporal,  otherwise 
he  should  not  be  a  head  of  the  whole  body.  And  as  in  temporal 
causes,  the  King,  by  the  mouth  of  the  Judges  in  his  courts  of  Jus- 
tice, doth  judge  and  determine  the  same  by  the  temporal  laws  of 
England;  so  in  causes  ecclesiastical  and  spiritual,  as  namely, 
blasphemy,  apostasy  from  Christianity,  heresies,  schisms,  ordering 
admissions,    institutions   of   clerks,   celebration   of  divine   service. 


54  HISTORY  OF  THE  COMMON  LAW 

rights  of  matrimony,  divorces,  general  bastardy,  subtraction  and 
right  of  tithes,  oblations,  obventions,  dilapidations,  reparation  of 
churches,  probates  of  testaments,  administrations  and  accounts 
upon  the  same,  simony,  incests,  fornications,  adulteries,  solicita- 
tion of  chastity,  pensions,  procurations,  appeals  in  ecclesiastical 
causes,  commutation  of  penance,  and  others,  (the  conusance  where- 
of belongs  not  to  the  common  laws  of  England,)  the  same  are  to  be 
determined  and  decided  by  ecclesiastical  Judges,  according  to  the 
King's  ecclesiastical  laws  of  this  realm :  for  as  the  Romans  fetching 
divers  laws  from  Athens,  yet  being  appro\'ed  and  allowed  by  the 
estate  there,  called  them  notwithstanding  Jus  civile  Romanorum: 
and  as  the  Normans  borrowing  all  or  most  of  their  laws  from  Eng- 
land, yet  baptized  them  by  the  name  of  the  laws  or  customs  of 
Normandy:  so  albeit  the  Kings  of  England  derived  their  ecclesias- 
tical laws  from  others,  yet  so  many  as  were  proved,  approved,  and 
allowed  here,  by  and  with  a  general  consent,  are  aptly  and  rightly 
called,  the  King's  Ecclesiastical  Laws  of  England,  which  whosoever 
shall  deny,  he  denieth  that  the  King  hath  full  and  plenary  power 
to  deliver  justice  in  all  causes  to  all  his  subjects,  or  to  punish 
all  crimes  and  offenses  within  his  kingdom:  for  that  as  before 
it  appeareth  the  deciding  of  matters  so  many,  and  of  so  great 
importance,  are  not  within  the  conusance  of  the  common  laws,  and 
consequently  that  the  King  is  no  complete  monarch,  nor  head,  of 
the  whole  and  entire  body  of  the  realm.  [Lord  Coke  here  is  re- 
porting the  "resolutions"  of  the  Judges  of  England.] 

Statutes  of  1857,  abolishing  the  Civil  Jurisdiction  of  the 
Ecclesiastical  Courts. 
An  Act  to  amend  the  Law  relating  to  Probates  and  Letters  of 
Administration  in  England.     (25th  August  1857.) 

III.  The  voluntary  and  contentious  Jurisdiction  and  Authority 
of  all  Ecclesiastical,  Royal  Peculiar,  Peculiar,  Manorial,  and  other 
Courts  and  Persons  in  England,  now  having  Jurisdiction  or  Author- 
ity to  grant  or  revoke  Probate  of  Wills  or  Letters  of  Administration 
of  the  Effects  of  deceased  Persons,  shall  in  respect  of  such  Matters 
absolutely  cease;  and  no  Jurisdiction  or  Authority  in  relation  to 
any  Matters  or  Causes  Testamentary,  or  to  any  Matter  arising 
out  of  or  connected  with  the  Grant  or  Revocation  of  Probate  or 
Administration,  shall  belong  to  or  be  exercised  by  any  such  Court  or 
Person. 


STATE  LAW  AND  CHURCH  LAW  55 

IV.  The  voluntary  and  contentious  Jurisdiction  and  Authority 
in  relation  to  the  granting  or  revoking  Probate  of  Wills  and  Letters 
of  Administration  of  the  Effects  of  deceased  Persons  now  vested 
in  or  which  can  be  exercised  by  any  Court  or  Person  in  England, 
together  with  full  Authority  to  hear  and  determine  all  Questions 
relating  to  Matters  and  Causes  Testamentary,  shall  belong  to  and 
be  vested,  in  Her  Majesty,  and  shall,  except  as  hereinafter  is  men- 
tioned, be  exercised  in  the  Name  of  Her  Majesty  in  a  Court  to  be 
called  the  Court  of  Probate,  and  to  hold  its  ordinary  Sittings  and  to 
have  its  Principal  Registry  at  such  Place  or  Places  in  London  or  Mid- 
dlesex as  Her  Majesty  in  Council  shall  from  Time  to  Time  appoint. 

V.  There  shall  be  One  Judge  of  Her  Majesty's  Court  of  Probate; 
and  it  shall  be  lawful  for  Her  Majesty  from  Time  to  Time,  by  Letters 
Patent  under  the  Great  Seal  of  the  United  Kingdom,  to  appoint  a 
Person,  being  or  having  been  an  Advocate  of  Ten  Years  Standing, 
or  a  Barrister-at-Law  of  Fifteen  Years  Standing,  to  be  such  Judge. 

An  Act  to  amend  the  Law  relating  to  Divorce  and  Matrimonial 
Causes  in  England.     (28th  August  1857.) 

Whereas  it  is  expedient  to  amend  the  Law  relating  to  Divorce, 
and  to  constitute  a  Court  with  exclusive  Jurisdiction  in  Matters 
Matrimonial  in  England,  and  with  Authority  in  certain  Cases  to 
decree  the  Dissolution  of  a  Marriage:  Be  it  therefore  enacted  by 
the  Queen's  most  Excellent  Majesty,  by  and  with  the  Advice  and 
Consent  of  the  Lords  Spiritual  and  Temporal,  and  Commons,  in 
this  present  Parliament  assembled,  and  by  the  Authority  of  the 
same,  as  follows: 

H.  As  soon  as  this  Act  shall  come  into  operation,  all  Jurisdic- 
tion now  exerciseable  by  any  Ecclesiastical  Court  in  England  in  re- 
spect of  Divorces  a  Mensd,  el  Thoro,  Suits  of  Nullity  of  Marriage,  Suits 
of  Jactitation  of  Marriage,  Suits  for  Restitution  of  Conjugal  Rights, 
and  in  all  Causes,  Suits,  and  Matters  Matrimonial,  shall  cease  to  be 
so  exerciseable,  except  so  far  as  relates  to  the  granting  of  Marriage 
Licenses,  which  may  be  granted  as  if  this  Act  had  not  been  passed. 

HL  Any  Decree  or  Order  of  any  Ecclesiastical  Court  of  compe- 
tent Jurisdiction  which  shall  have  been  made  before  this  Act  comes 
into  operation,  in  any  Cause  or  Matter  Matrimonial,  may  be 
enforced  or  otherwise  dealt  with  by  the  Court  for  Divorce  and  Matri- 
monial Causes  hereinafter  mentioned,  in  the  same  Way  as  if  it  had 
been  originally  made  by  the  said  Court  under  this  Act. 


56  HISTORY  OF  THE  COMMON  LAW 

lY.  All  Suits  and  Proceedings  in  Causes  and  Matters  Matri- 
monial which  at  the  Time  when  this  Act  comes  into  operation  shall 
be  pending  in  any  Ecclesiastical  Court  in  England  shall  be  trans- 
ferred to,  dealt  with,  and  decided  by  the  said  Court  for  Divorce 
and  Matrimonial  Causes  as  if  the  same  had  been  originally  insti- 
tuted in  the  said  Court. 

\T.  As  soon  as  this  Act  shall  come  into  operation,  all  Jurisdic- 
tion now  vested  in  or  exerciseable  by  any  Ecclesiastical  Court  or 
Person  in  England  in  respect  of  Divorces  a  Mejisa  et  Thoro,  Suits  of 
Nullity  of  Marriage,  Suits  for  Restitution  of  Conjugal  Rights,  or 
Jactitation  of  Marriage,  and  in  all  Causes,  Suits,  and  Matters 
Matrimonial,  except  in  respect  of  Marriage  Licenses,  shall  belong 
to  and  be  vested  in  Her  Majesty,  and  such  Jurisdiction,  together 
with  the  Jurisdiction  conferred  by  this  Act,  shall  be  exercised  in  the 
Name  of  Her  Majesty  in  a  Court  of  Record  to  be  called  "The 
Court  for  Divorce  and  Matrimonial  Causes." 

VHL  The  Lord  Chancellor,  the  Lord  Chief  Justice  of  the 
Court  of  Queen's  Bench,  the  Lord  Chief  Justice  of  the  Court  of 
Common  Pleas,  the  Lord  Chief  Baron  of  the  Court  of  Exchequer, 
the  Senior  Puisne  Judge  for  the  Time  being  in  each  of  the  Three 
last-mentioned  Courts,  and  the  Judge  of  Her  Majesty's  Court  of 
Probate  constituted  by  any  Act  of  the  present  Session,  shall  be  the 
Judges  of  the  said  Court. 

IX.  The  Judge  of  the  Court  of  Probate  shall  be  called  the  Judge 
Ordinary  of  the  said  Court,  and  shall  have  full  Authority,  either 
alone  or  with  One  or  more  of  the  other  Judges  of  the  said  Court, 
to  hear  and  determine  all  Matters  arising  therein,  except  Petitions 
for  the  dissolving  of  or  annulling  Marriage,  and  Applications  for 
new  Trials  of  Questions  or  Issues  before  a  Jury,  Bills  of  Exception, 
Special  Verdicts,  and  Special  Cases,  and,  except  as  aforesaid,  may 
exercise  all  the  Powers  and  Authority  of  the  said  Court. 

NiBOYET  v.  NiBOYET,  CoURT  OF  APPEAL,  1878  (1  P.  D.  1,  4-7). 

James,  L.  J.:  Can  there  be  any  doubt  that  before  the  English 
Act  of  Parliament  transferring  the  jurisdiction  in  matrimonial 
causes,  from  the  church  and  her  Courts  to  the  sovereign  and  her 
Court,  the  injured  wife  could  have  cited  the  adulterous  husband 
before  the  bishop,  and  ha\e  asked  either  for  a  restitution  of  con- 
jugal rights  or  for  a  divorce  a  mensa  et  thoro,  and  in  either  case  for 


STATE  LAW  AND  CHURCH  LAW  57 

proper  alimony?  The  jurisdiction  of  the  Court  Christian  was  a 
jurisdiction  over  Christians,  who,  in  theory,  by  virtue  of  their  bap- 
tism, became  members  of  the  one  CathoUc  and  Apostolic  Church. 
The  church  and  its  jurisdiction  had  nothing  to  do  with  the  original 
nationality  or  acquired  domicils  of  the  parties,  using  the  word  domi- 
cil  in  the  sense  of  the  secular  domicil,  viz.,  the  domicil  affecting 
the  secular  rights,  obligations,  and  status  of  the  party.  Residence, 
as  distinct  from  casual  presence  on  a  visit  or  in  itinere,  no  doubt 
was  an  important  element;  but  that  residence  had  no  connection 
with,  and  little  analogy  to,  that  which  we  now  understand  when  we 
endeavor  to  solve,  what  has  been  found  so  often  very  difficult  of 
solution,  the  question  of  a  person's  domicil.  If  a  Frenchman  came 
to  reside  in  an  English  parish  his  soul  was  one  of  the  souls  the  care 
of  which  was  the  duty  of  the  parish  priest,  and  he  would  be  liable 
for  any  ecclesiastical  offense  to  be  dealt  with  by  the  ordinary, 
pro  salute  animae.  It  is  not  immaterial  to  note  that  dioceses,  and 
states  or  provinces,  were  not  necessarily  conterminous.  The 
Channel  Islands,  which  are  no  part  of  England,  are  in  the  diocese 
of  Winchester,  and  the  Isle  of  Man  is  in  the  province  of  York;  and 
many  similar  cases  might  be  found  on  the  Continent.  And  although 
the  laws  of  the  state  sometimes  interfered  by  way  of  coercion,  regu- 
lation, or  prohibition,  with  the  Courts  Christian,  the  latter  acted 
propria  vigore,  and  they  administered  their  own  law,  not  the  law 
of  the  state,  and  they  administered  it  in  their  own  name  and  not 
in  the  name  of  the  sovereign.  The  language  of  the  Act  creating 
the  existing  court  strikingly  illustrates  this,  when  it  enacts  that  all 
jurisdiction  vested  in  or  exercised  by  any  Ecclesiastical  Court  or 
person  in  England,  etc.,  shall  belong  to  and  be  vested  in  her  Majesty. 
It  was  not  previously  vested  in  her,  although  she  had  appellate 
jurisdiction  as  supreme  Ecclesiastical  judge.  If,  before  that  Act 
had  passed,  the  facts  alleged  in  this  petition  had  occurred,  and  the 
injured  wife  had  applied  to  the  Bishop  of  Durham  for  such  relief 
in  the  matter  as  was  then  competent  to  him,  is  it  possible  to  conceive 
any  principle  on  which  the  guilty  husband  could  demur  to  the 
Ordinary's  jurisdiction?  The  wrong  done  in  his  diocese,  the  offend- 
ing party  openly  and  scandalously  violating  the  laws  of  God  and 
of  the  church  in  his  diocese,  why  should  he  decline  to  interfere? 
What  could  it  be  to  him  whether  the  offender  was  born  in  any 
other  diocese  or  born  in  any  other  country.  Christian,  heathen,  or 
Mahometan,  and  had  not  in  the  eye  of  the  secular  Court  abandoned 
his  domicil  therein?     And  what  principle  of  international  law  could 


58  HISTORY  OF  THE  COMMON  LAW 

there  have  been  to  create  the  slightest  difficulty  in  the  way  of  a 
decree  for  restitution,  for  separation  a  mensa  et  thoro,  or  for  alimony? 
The  wrongdoer  has  elected  to  reside  within  the  local  limits  of  the 
jurisdiction  of  the  Church  Court,  and  neither  the  Court  of  the  State 
nor  the  Church  or  State  Court  of  his  own  country  has  any  ground 
for  alleging  that  the  Church  Court  appealed  to  is  usurping  a  juris- 
diction, when  it  by  Ecclesiastical  monition,  declaration,  and  cen- 
sure, compels  the  offending  party  to  give  proper  redress  or  declares 
the  offended  party  to  be  thenceforth  relieved  from  the  obligation 
to  provide  for  or  to  adhere  to  the  bed  and  board  of  the  other; 
which  was  what  the  decree  of  divorce  a  mensa  et  thoro  really 
amounted  to. 

{d)  The  Kings  Courts  ^ 

Extracts  from  Holdsworth,  History  of  English  Law. 

The  term  "Curia  Regis"  means  (i)  the  place  where  the  king 
resided  attended  by  the  chief  officials  of  his  court  and  household ; 
(ii)  the  supreme  central  court  of  the  country  where  the  business 
of  the  government  in  all  its  branches  was  transacted.  The  names 
of  the  officials,  the  forms  of  the  legal  proceedings,  and  the  terms 
used  to  describe  them  were  Norman.  It  was,  in  fact,  a  strong 
central  court  of  this  nature  which  was  wanting  to  the  Anglo-Saxon 
constitution. 

The  king  had  in  Anglo-Saxon  times  a  certain  exclusive  juris- 
diction. The  laws  of  Cnut  and  of  Henry  I  give  us  a  list  of  the  pleas 
of  the  crown.  Contempt  of  the  king  is  a  specified  offense.  Cer- 
tain places  like  the  royal  streets,  certain  persons  like  the  king's 
thegns  are  under  the  king's  immediate  jurisdiction.  The  king  has 
his  special  peace.  But  the  county,  the  hundred  and  the  greater 
lords  have  also  their  peace  and  their  jurisdiction. 

Under  the  Norman  kings  we  get  a  strong  central  court  but  no 
very  distinct  separation  into  departments  of  government.  The 
Exchequer,  it  is  true,  in  Henry  I's  reign  seems  to  be  beginning  to 
have  a  distinct  organization.  But  the  Exchequer  was  staffed  by 
the  same  body  of  officials  who  regularly  took  their  places  in  the 
Curia  Regis.  At  this  period  it  is  the  personality  of  the  king  which 
gives  to  the  Curia  Regis  its  power,  as  the  reign  of  Stephen'clearly 
shows.  The  laws  of  Henry  I  recognize  the  law  of  the  king's  court 
as  supreme  all  over  the  country.     It  constitutes  a  fourth  species 

1  Carter,  History  of  English  Legal  Institutions,  Chaps.  II-XXl;  Inderwick, 
The  King's  Peace. 


THE  KING  S  COURTS  59 

of  law,  superior  to  the  tribal  customs  of  the  West  Saxons,  the 
Mercians,  and  the  Danes  in  its  stability  and  power.  But  we  can 
see  from  these  same  laws  that  it  has  not  yet  attained  either  a  definite 
jurisdiction  or  a  definite  organization. 

The  legal  reforms  of  Henry  H  gave  to  the  Curia  Regis  a  more 
definite  jurisdiction;  and,  as  a  consequence  we  begin  to  see  at  the 
end  of  this  period  the  beginnings  of  a  more  definite  organization  of 
the  powers  of  the  state.   ... 

The  following  is  a  list  of  the  chief  legislative  acts  which  are  of 
importance  to  legal  history.  (1)  The  Constitutions  of  Clarendon 
(11G4).  They  were  an  attempt  to  settle  the  matters  in  dispute 
between  church  and  state,  and  the  limits  of  the  jurisdiction  of  the 
lay  and  the  ecclesiastical  courts.  (2)  The  Assize  of  Clarendon 
(1166).  This  is  a  set  of  instructions  to  the  itinerant  justices  and 
sheriffs  with  reference  to  their  duties  and  their  jurisdiction.  (3) 
The  inquest  of  Sheriffs  (1170).  This  directs  a  general  inquiry 
into  the  methods  in  which  the  sherift's  had  been  conducting  the 
local  government  of  the  country.  (4)  The  Assize  of  Northampton 
(1176)  was  a  reinactment  and  enlargement  of  the  Assize  of  Clar- 
endon. (5)  The  Grand  Assize  provided  a  new  method  for  the 
trial  of  actions  relating  to  the  ownership  of  land.  (6)  The  Assize 
Utrum  provided  for  the  trial  of  the  question  whether  land  is  a 
lay  fee  or  held  in  frankalmoigne.  (7)  The  Possessory  Assizes. 
The  Assize  of  novel  disseisin  provided  for  the  trial  of  the  question 
whether  A  has  disturbed  B's  seisin.  The  Assize  of  mort  d'ancestre 
provided  for  the  trial  of  a  dispute  as  to  who  is  the  heir  of  the  per- 
son last  seised  of  a  given  estate  of  freehold.  The  Assize  of  dar- 
rein presentment  provided  for  the  trial  of  a  dispute  as  to  who  was 
last  seised  of  the  right  to  present  to  a  vacant  living.  In  all  these 
assizes  the  trial  was  by  jury.  In  all  these  assizes  the  proceedings 
were  by  royal  writ  addressed  either  to  the  justices  of  the  Curia 
Regis,  to  the  sherift',  or  to  the  lord  of  whom  the  land  was  held. 

The  result  is  that  the  Curia  Regis  draws  to  itself  jurisdiction 
over  criminal  cases,  and  over  actions  relating  to  the  ownership  or 
possession  of  land  held  by  free  tenure.  The  pleas  of  the  crown  are 
now  no  longer  described  by  the  formless  list  which  we  find  in  the 
laws  of  Henry  I.  The  opening  words  of  Glanvil's  treatise  contain 
a  classification  which  would  have  been  impossible  at  the  beginning 
of  Henry  H's  reign.  "Placitorum,''  he  says,  "aliud  est  criminate, 
aliud  civile.  Item  placitorum  criminalium,  aliud  pertinet  ad  coronam 
domini  regis,  aliud  ad  vicecomitem."  .  .  .     The  civil  pleas  of  the 


60  HISTORY  OF  THE  COMMON  LAW 

crown  determined  in  the  Curia  Regis  are  pleas  concerning  baronies, 
the  advowsons  of  churches,  status,  dower,  the  non-observance 
of  a  fine  made  in  the  Curia  Regis,  homage,  reliefs,  purprestures, 
debts  of  the  laity,  ownership,  and  possession.  The  civil  pleas  of 
the  crown  determined  by  the  sheriff  are  the  ownership  of  freehold 
where  the  lord  has  made  default,  and  the  ownership  of  villeins. 
The  sheriff  hears  these  pleas  of  the  crown  "per  breve  domini  regis.'* 
In  the  laws  of  Henry  I  the  sheriff  is  vaguely  stated  to  be  unable 
to  hear  pleas  of  the  crown  "sine  diffinitis  prelociicionibus,'"  but  no 
attempt  is  made  to  describe  the  form  which  these  royal  mandates 
may  take.  Glanvil  always  gives  the  text  of  the  various  writs  by 
which  these  proceedings  are  begun.  We  can  see  from  Glanvil's 
book  that  the  jurisdiction  of  the  Curia  Regis  is  an  elastic  jurisdic- 
tion. The  register  of  original  writs  is  constantly  expanding.  "As 
yet  the  king  is  no  mere  vendor,  he  is  a  manufacturer  and  can  make 
goods  to  order;  the  day -has  not  come  when  the  invention  of  new 
writs  will  be  hampered  by  the  claims  of  a  parliament;  but  still  in 
Glanvil's  day  the  officina  justitiae  has  already  a  considerable  store 
of  ready  made  wares  and  English  law  is  already  taking  the  form 
of  a  commentary  upon  writs." 

Some  organization  of  the  Curia  Regis  becomes  necessary.  For 
some  years  after  the  accession  of  Henry  I  the  Curia  Regis  does  not 
begin  to  split  into  departments.  What  division  there  is  is  rather 
a  division  between  ofificials  than  between  departments.  The 
different  members  of  the  king's  household  —  the  justices,  the  chan- 
cellor, the  treasurer,  the  chamberlain,  the  constable  and  the  mar- 
shal —  distribute  among  themselves  the  powers  of  government. 
The  court  itself  is  now  a  large  court  composed  of  all  the  greater 
vassals  of  the  crown  and  the  leading  officials  of  the  state,  now 
a  small  executive  body,  now  a  law  court  consisting  of  a  few  royal 
judges.  Sometimes  the  king  himself,  sometimes  the  members  of 
the  Curia  or  of  the  Exchequer  travel  over  the  country.  But  any 
court  whether  held  before  the  king  himself  or  before  his  justices  is 
Curia  Regis  —  the  court  which  administers  royal  justice  as  distinct 
from  the  justice  administered  by  the  communal  or  the  feudal  courts. 

At  the  end  of  this  period  we  find  that  the  court  is  beginning  to 
split  into  various  divisions  in  which  we  can  discern  the  judicial 
system  of  the  future. 

I.     The  Common  Law  Courts. 

Before  describing  in  detail  the  various  courts  of  common  law 
we  may  notice  that  the  courts  were  royal  courts  and  that  judges  of 


THE  KING'S  COURTS  61 

these  courts  were  royal  justices.  From  this  three  consequences 
followed.  (1)  The  king  had  originally  a  large  control  over  the 
business  before  the  court.  We  have  seen  that  in  early  days  the  king 
actually  decided  cases.  There  are  instances  of  this  in  Henry  HI, 
Edward  I  and  Edward  H's  reign.  But  when  Fortescue  wrote  at 
the  end  of  the  15th  century  it  had  ceased  to  be  usual.  Coke  merely 
stated  the  existing  practice  in  answer  to  James  I's  claim  to  decide 
cases  for  himself.  Though  the  crown  had  thus  ceased  to  take  part 
in  the  proceedings  of  courts  of  law,  he  had  many  privileges  and 
prerogatives  in  relation  to  such  proceedings.  It  was  claimed  for 
him  in  James  I's  reign  that  he  could  peremptorily  interfere  to 
stop  proceedings  in  any  common  law  court  by  the  writ  of  Rege 
Inconsulto.  It  was  clear  that  he  could  sue  in  what  court  he  pleased. 
In  addition  he  had  other  smaller  procedural  advantages.  Perhaps 
the  right  of  the  Attorney  or  Solicitor  General  to  reply  in  a  criminal 
case,  though  the  prisoner  has  called  no  witnesses,  is  one  of  the 
last  surviving  of  that  "garland  of  prerogatives"  which  the  older 
law  gave  to  him.  (2)  The  judges  held  their  ofiflces,  as  a  rule, 
during  the  royal  pleasure.  The  manipulation  of  the  bench  by  the 
Stuarts  led  to  the  clause  in  the  Act  of  Settlement  which  provided 
that  the  judges  should  hold  office  "quamdiu  se  bene  gesserinf' ;  but 
that  it  should  be  lawful  for  the  crown  to  remove  them  on  an  address 
by  the  two  Houses  of  Parliament.  (3)  They  vacated  their  offices 
on  the  demise  of  the  crown.  An  Act  of  Anne  provided  that  the 
judges,  with  other  officers  of  the  crown,  should  continue  to  hold 
their  offices  for  a  space  of  six  months  after  the  demise  of  the  crown. 

An  Act  of  George  Ill's  reign  provided  that  the  judges'  tenure  of 
office  should  be  unaffected  by  the  demise  of  the  crown. 

The  following  courts  comprised  the  Courts  of  Common  Law: 
1.  The  court  of  Common  Pleas.  2.  The  court  of  King's  Bench. 
3.    The  court  of  Exchequer.    4.    The  court  of  Exchequer  Chamber. 

Glanvill,  De  Legibus  et  Consuetudinibus  Regni  Angliae, 
Cap.  3,  4  (1187).  Beames's  translation. 
Civil  Pleas  are  divided  into  such  as  are  discussed  and  determined 
in  the  King's  Court  only,  and  such  as  fall  within  the  Jurisdiction 
of  the  Sheriffs  of  Counties.  In  the  former  Court,  are  discussed 
and  determined,  all  such  Pleas  as  concern  Baronies,  Advowsons  of 
Churches,  questions  of  condition.  Dower,  when  the  woman  has 
been  entirely  debarred  from  receiving  it;  for  breach  of  Fine  made 
in  the  King's  Court;    concerning  the  performing  of  Homage,  and 


62  HISTORY  OF  THE  COMMON  LAW 

the  receiving  of  Reliefs,  and  concerning  Purprestures,  and  Debts 
owing  by  lay  persons.  These  Pleas,  indeed,  relate  to  the  propriety 
of  the  thing  only:  concerning  those  which  refer  to  the  possession, 
and  which  are  discussed  and  decided  by  Recognitions,  we  shall 
speak  in  their  proper  place. 

To  the  Sheriffs  of  Counties  these  Pleas  appertain:  the  Plea  con- 
cerning the  Right  of  Freehold,  when  the  Courts  of  the  Lords  are 
proved  to  have  failed  in  doing  justice,  the  nature  of  which  we  shall 
speak  of  in  another  place;  and  the  Plea  concerning  Villeins-born: 
such  Pleas  being,  in  each  instance,  sanctioned  by  the  King's  Writ. 

Extracts  from  DiALOGUS  de  Scaccario  (1178-1179).  Hender- 
son's translation. 

Disciple.     What  is  the  exchequer?  ' 

Master.  The  exchequer  is  a  quadrangular  surface  about  ten 
feet  in  length,  five  in  breadth,  placed  before  those  who  sit  around 
it  in  the  manner  of  a  table,  and  all  around  it  it  has  an  edge  about 
the  height  of  one's  four  fingers,  lest  anything  placed  upon  it  should 
fall  off.  There  is  placed  over  the  top  of  the  exchequer,  moreover, 
a  cloth  bought  at  the  Easter  term,  not  an  ordinary  one,  but  a  black 
one  marked  with  stripes,  the  stripes  being  distant  from  each  other 
the  space  of  a  foot  or  the  breadth  of  a  hand.  In  the  spaces,  more- 
over, are  counters  placed  according  to  their  values;  about  these  we 
shall  speak  below.  Although,  moreover,  such  a  surface  is  called 
exchequer,  nevertheless  this  name  is  so  changed  about  that  the 
court  itself  which  sits  when  the  exchequer  does  is  called  exchequer; 
so  that  if  at  any  time  through  a  decree  anything  is  established  by 
common  counsel,  it  is  said  to  have  been  done  at  the  exchequer  of 
this  or  that  year.  As,  moreover,  one  says  today  '  'at  the  exchequer, ' ' 
so  one  formerly  said  "at  the  tallies." 

D.     What  is  the  reason  of  this  name? 

M.  No  truer  one  occurs  to  me  at  present  than  that  it  has  a  shape 
similar  to  that  of  a  chess  board. 

D.  Would  the  prudence  of  the  ancients  ever  ha\-e  called  it  so  for 
its  shape  alone,  when  it  might  for  a  similar  reason  be  called  a  table 
(tabularium)? 

M.  I  was  right  in  calling  thee  painstaking.  There  is  another, 
but  a  more  hidden  reason.  For  just  as,  in  a  game  of  chess,  there 
are  certain  grades  of  combatants  and  they  proceed  or  stand  still 
by  certain  laws  or  limitations,  some  presiding  and  others  ad\-ancing: 
so,  in  this,  some  preside,  some  assist  by  reason  of  their  office,  and 


THE  KING'S  COURTS  63 

no  one  is  free  to  exceed  the  fixed  laws;  as  will  be  manifest  from 
what  is  to  follow.  Moreover,  as  in  chess  the  battle  is  fought  be- 
tween kings,  so  in  this  it  is  chiefly  between  two  that  the  conflict 
takes  place  and  the  war  is  waged  —  the  treasurer,  namely,  and  the 
sheriff  who  sits  there  to  render  account;  the  others  sitting  by  as 
judges,  to  see  and  to  judge. 

D.     Is  that  exchequer,  inwhichsuchaconflictgoeson,theonlyone? 

M.  No.  For  there  is  a  lower  exchequer  which  is  also  called  the 
Receipt,  where  the  money  is  handed  over  to  be  counted,  and  is  put 
down  in  writing  and  on  tallies,  so  that  afterwards,  at  the  upper 
exchequer,  an  account  may  be  rendered  of  them;  both  have  the 
same  origin,  however,  for  whatever  is  declared  payable  at  the  greater 
^ne  is  here  paid ;  and  whatever  has  been  paid  here  is  accounted  for 
there. 

D.     What  is  the  nature  or  arrangement  of  the  lower  exchequer? 

M.  As  I  see,  thou  canst  not  bear  to  be  ignorant  of  any  of  these 
things.  Know  then  that  the  lower  exchequer  has  its  persons  dis- 
tinct from  each  other  by  reason  of  their  offices,  but  with  one  intent 
devoted  to  the  interests  of  the  king,  due  regard,  nevertheless, 
being  paid  to  equity;  all  serving,  moreover,  not  in  their  own  names 
but  in  the  names  of  their  masters ;  with  the  exception  of  two  knights, 
he  namely,  who  conducts  the  assays,  and  the  melter.  Their  offices 
depend  on  the  will  of  our  king;  hence  they  seem  to  belong  rather  to 
the  upper  than  to  the  lower  exchequer  as  will  be  explained  below. 
The  clerk  of  the  treasurer  is  there  with  his  seal.  There  are  also 
two  knights  of  the  chamberlains.  There  is  also  a  certain  knight  who 
may  be  called  the  silverer,  for,  by  reason  of  his  office,  he  presides 
at  the  testing  of  silver.  There  are  also  four  tellers  to  count  the 
money.  There  is  also  the  usher  of  the  treasury  and  the  watch- 
man. These,  moreover,  are  their  offices:  The  clerk  of  the  treasurer, 
when  the  money  has  been  counted  and  put  in  boxes  by  the  hundred 
pounds,  affixes  his  seal  and  puts  down  in  writing  how  much  he  has 
received,  and  from  whom,  and  for  what  cause;  he  registers  also 
the  tallies  which  have  been  made  by  the  chamberlains  concerning 
that  receipt.  Not  only,  moreover,  does  he  place  his  seal  on  the 
sacks  of  money,  but  also,  if  he  wishes,  on  the  chests  and  on  the 
separate  boxes  in  which  the  rolls  and  tallies  are  placed,  and  he 
diligently  supervises  all  the  offices  which  are  under  him,  and  nothing 
is  hidden  from  him.     The  office  of  the  knights,  who  are  also  called 


64  HISTORY  OF  THE  COMMON  LAW 

chamberlains,  because  they  serve  in  the  name  of  the  chamberlains, 
is  this:  They  carry  the  keys  of  the  chests;  for  each  chest  has  two 
locks  of  a  different  kind,  that  is,  to  neither  of  which  the  key  of 
the  other  can  be  fitted ;  and  they  carry  the  keys  of  them.  Each 
chest,  moreover,  is  girded  with  a  certain  immovable  strap,  on  which, 
in  addition,  when  the  locks  are  closed  the  seal  of  the  treasurer  is 
placed;  so  that  neither  of  the  chamberlains  can  have  access  except 
by  common  consent.  Likewise  it  is  their  duty  to  weigh  the  money 
which  has  been  counted  and  placed  by  the  hundred  shillings  in 
wooden  receptacles,  so  that  there  be  no  error  in  the  amount;  and 
then,  at  length,  to  put  them  in  boxes  by  the  hundred  pounds  as 
has  been  said.  But  if  a  receptacle  is  found  to  have  any  deficiency, 
that  which  is  thought  to  be  lacking  is  not  made  good  by  calculation, 
but  straightway  the  doubtful  one  is  thrown  back  into  the  heaj^ 
which  is  to  be  counted.  And  take  note  that  certain  counties,  from 
the  time  of  King  Henry  I  and  in  the  time  of  King  Henry  H,  could 
lawfully  offer  for  payment  coins  of  any  kind  of  money  provided  they 
were  of  silver  and  did  not  differ  from  the  lawful  weight;  because 
indeed,  by  ancient  custom,  not  themselves  having  moneyers,  they 
sought  their  coins  from  on  all  sides;  such  are  Northumberland 
and  Cumberland.  Coins  thus  received,  moreover,  although  they 
came  from  a  farm,  were  nevertheless  set  apart  from  the  others  with 
some  marks  placed  on  them.  But  the  remaining  counties  were 
accustomed  to  bring  only  the  usual  and  lawful  coin  of  the  present 
money  as  well  from  farms  as  from  pleas.  But  after  the  illustrious 
king  whose  renown  shines  the  brighter  in  great  matters,  did,  in 
his  reign,  institute  one  weight  and  one  money  for  the  whole  king- 
dom, each  county  began  to  be  bound  by  one  necessity  of  law  and 
to  be  constrained  by  the  manner  of  payment  of  a  general  commerce. 
All,  therefore,  in  whatever  manner  they  are  bounden,  pay  the  same 
kind  of  money;  but  nevertheless  all  do  not  sustain  the  loss  which 
comes  from  the  testing  by  combustion.  The  chamberlains  likewise 
make  the  tallies  of  receipts,  and  have,  in  common  with  the  clerk  of 
the  treasurer,  to  disburse  the  treasure  received  when  required  by 
writs  of  the  king  or  an  order  of  the  barons;  not,  however,  without 
consulting  their  masters.  These  three,  all  together  or  by  turns,  are 
sent  with  treasure  when  it  is  necessary.  These  three  have  the  prin- 
cipal care  of  all  that  is  done  in  the  lower  exchequer. 

M.    Although  the  offices  of  those  who  have  seats  at  the  greater 
exchequer  seem  to  differ  in  certain  functions,  the  purpose,  neverthe- 


THE  KING'S  COURTS  65 

less,  of  all  the  offices  is  the  same,  to  look  out  for  the  king's  advan- 
tage; with  due  regard  for  equity,  however,  according  to  the  fixed 
laws  of  the  exchequer.  The  arrangement  of  ordering  of  the  latter 
is  confirmed  by  its  antiquity  and  by  the  authority  of  the  nobles 
who  have  their  seats  there.  It  is  said  to  have  begun  with  the  very 
conquest  of  the  kingdom  made  by  King  William,  the  arrangement 
being  taken,  however,  from  the  exchequer  across  the  seas;  but 
they  diff'er  in  very  many  and  almost  the  most  important  points. 
Some  believe  it  to  have  existed  under  the  Anglo-Saxon  kings, 
taking  their  argument  in  this  matter  from  the  fact  that  the  peasants 
and  already  decrepit  old  men  of  those  estates  which  are  tailed  of 
the  crown,  whose  memory  is  gray  in  these  matters,  knew  very  well, 
having  been  taught  by  their  fathers,  how  much  extra  money  they 
are  bound  to  pay  on  the  pound  for  the  blanching  of  their  farm. 
But  this  argument  applies  to  the  payment  of  the  farm,  not  to  the 
session  of  the  exchequer.  The  fact  also  seems  to  be  against  those 
who  say  that  the  blanching  of  the  farm  began  in  the  time  of  the 
Anglo-Saxon  kings,  that  in  Domesday  book,  in  which  a  diligent 
description  of  the  whole  kingdom  is  contained,  and  in  which  the 
value  is  expressed  of  the  different  estates  as  well  of  the  time  of  King 
Edward  as  of  the  time  of  King  William,  under  whom  it  was  made, — 
there  is  no  mention  at  all  of  the  blanching  of  the  farm;  from  which 
it  seems  probable,  that  after  the  time  when  that  survey  was  made 
in  the  reign  of  the  aforementioned  king,  the  blanching  of  the  farm 
was  fixed  upon  by  his  investigators  on  account  of  causes  which 
are  noted  below.  But  at  whatever  time  it  came  into  use,  it  is  cer- 
tain that  the  exchequer  is  conformed  by  the  authority  of  the  great, 
so  that  it  is  allowed  to  no  one  to  infringe  its  statutes  or  to  resist 
them  by  any  kind  of  rashness.  For  it  has  this  in  common  with  the 
court  itself  of  the  lord  king  (Curia  Regis),  in  which  he  in  his  own 
person  administers  the  law,  that  no  one  is  allowed  to  contradict  a 
record  or  a  sentence  passed  in  it.  The  authority,  moreover,  of  this 
court  is  so  great,  as  well  on  account  of  the  pre-eminence  of  the 
royal  image,  which,  by  a  special  prerogative,  is  kept  on  his  seal  of 
the  treasury,  as  on  account  of  those  who  have  their  seats  there,  as 
has  been  said;  by  whose  watchfulness  the  condition  of  the  whole 
kingdom  Is  kept  safe.  For  there  sits  the  Chief  Justice  of  the  lord 
king  by  reason  of  his  judicial  dignity,  as  well  as  the  greatest  men 
of  the  kingdom,  who  share  familiarly  in  the  royal  secrets;  so  that 
whatever  has  been  established  or  determined  in  the  presence  of 
such  great  men  subsists  by  an  inviolable  right.     In  the  first  place 


66  HISTORY  OF  THE  COMMON  LAW 

there  sits,  nay  also  presides,  by  reason  of  his  office,  the  first  man  in 
the  kingdom  —  namely,  the  Chief  Justice.  With  him  sit,  solely  by 
command  of  the  sovereign,  with  momentary  and  varying  authority, 
indeed,  certain  of  the  greatest  and  most  discreet  men  in  the  king- 
dom, who  may  belong  either  to  the  clergy  or  to  the  court.  They 
sit  there,  I  say,  to  interpret  the  law  and  to  decide  upon  the  doubtful 
points  which  frequently  arise  from  incidental  questions.  For  not  in 
its  reckonings,  but  in  its  manifold  judgments,  does  the  superior 
science  of  the  exchequer  consist.  For  it  is  easy  when  the  sum 
required  has  been  put  down,  and  the  sums  which  have  been  handed 
in  are  placed  under  it  for  comparison,  to  tell  by  subtraction  if  the 
demands  have  been  satisfied  or  if  anything  remains.  But  when  one 
begins  to  make  a  many-sided  investigation  of  those  things  which 
come  into  the  fisc  in  varying  ways,  and  are  required  under  different 
conditions,  and  are  not  collected  by  the  sheriff's  in  the  same  way, — 
to  be  able  to  tell  if  the  latter  have  acted  otherwise  than  they  should, 
is  in  many  ways  a  grave  task.  Therefore  the  greater  science  of  the 
exchequer  is  said  to  consist  in  these  matters.  But  the  judgments 
on  doubtful  or  doubted  points  which  frequently  come  up  cannot 
be  comprehended  under  one  form  of  treatment;  for  all  kinds  of 
doubts  have  not  yet  come  to  light. 

Bracton,  Bk.  ni,  tr.  1,  chap.  7,  §  2.    Twiss's  translation. 

But  civil  pleas  for  a  thing  or  against  a  person,  to  be  determined 
in  the  court  of  the  king,  are  determined  before  different  justices. 
For  he  has  several  courts,  in  which  different  actions  are  determined, 
and  of  those  courts  he  has  a  special  court  of  his  own,  as  the  King's 
Hall,  and  chief  justices  who  determine  the  special  causes  of  the 
king  and  of  all  others  upon  complaint,  or  through  a  privilege  or 
franchise.  As  if  there  be  some  one  who  ought  not  to  be  impleaded, 
except  before  the  king  himself.  He  has  also  a  court  and  resident 
justices  of  the  Bench,  who  hold  cognizance  of  all  pleas,  respecting 
which  they  have  authority  to  take  cognizance,  and  without  a  war- 
rant they  do  not  exercise  jurisdiction  nor  coercion.  He  has  also 
justices  itinerant  from  county  to  county,  sometimes  to  hear  all  pleas, 
sometimes  to  hear  special  pleas  as  to  hold  assises  of  novel  disseysine 
or  of  the  death  of  an  ancestor,  and  to  deli\er  jails,  sometimes  for 
one  singly,  or  for  two  and  not  more.  In  all  these  cases  the  courts 
will  be  those  of  the  king  himself.  And  there  are  two  recognitions, 
for  instance,  of  novel  disseysine  and  of  the  death  of  an  ancestor, 
which   ought   not    to    be  held  except  in  their  own  counties  by  a 


THE  KING'S  COURTS  67 

common  franchise,  and  this  unless  they  have  been  commenced  in  the 
counties,  because  if  they  have  been  commenced  in  a  county,  they 
may  be  transferred  out  of  the  county  from  place  to  place  and  be 
determined  outside  the  county  with  all  their  consequences,  as  in 
convictions  and  in  certifications,  when  they  have  taken  place,  and 
whether  recognitions  of  this  kind  have  been  determined  in  the 
county  or  not,  it  is  not  forbidden,  that  convictions  and  certifications 
may  be  made  outside  the  county.  And  as  it  has  been  said  before 
in  part,  pleas  in  the  above  causes  are  carried  from  the  courts-baron 
to  the  county,  and  there  determined  sometimes,  and  sometimes 
they  are  thence  transferred  and  laid  before  the  justices  itinerant 
in  a  county,  and  thence  before  the  justices  of  the  bench,  or  before 
the  king  himself  in  many  causes. 

Magna  Carta.  [These  extracts  are  from  the  great  Charter  of 
Henry  HI.] 

Cap.  xi.  Common  Pleas  shall  not  follow  our  court,  but  shall 
be  holden  in  some  place  certain. 

Cap.  xii.  Assises  of  novel  disseisin  and  of  mortdancestor  shall 
not  be  taken  but  in  the  shires,  and  after  this  manner;  if  we  be  out 
of  this  realm,  our  Chief  Justicer  shall  send  our  Justicers  through 
every  county  once  in  the  year,  which  with  the  knights  of  the  shires 
shall  take  the  said  assises  in  those  counties;  and  those  things  that 
at  the  coming  of  our  aforesaid  Justicers,  being  sent  to  take  those 
assises  in  the  counties,  cannot  be  determined,  shall  be  ended  by 
them  in  some  other  place  in  their  circuit;  and  those  things  which 
for  difficulty  of  some  articles  cannot  be  determined  by  them,  shall 
be  referred  to  our  Justicers  of  the  Bench,  and  there  shall  be  ended. 

Britton,  Bk.  I,  chap.  1  (about  1290).     Nichols's  translation. 

1.  First,  with  regard  to  our  selves  and  our  Court,  we  have  or- 
dained, that,  inasmuch  as  we  are  not  sufficient  in  our  proper  person 
to  hear  and  determine  all  the  complaints  of  our  said  people,  we 
have  distributed  our  charge  in  several  portions,  as  is  here  ordained. 

2.  We  will  that  our  jurisdiction  be  superior  to  all  jurisdictions 
in  our  realm;  so  that  in  all  kinds  of  felonies  trespasses  and  con- 
tracts, and  in  all  manner  of  other  actions  personal  or  real,  we  have 
power  to  give,  or  cause  to  be  given,  such  judgment  as  the  case  re- 
quires without  any  other  process,  whenever  we  have  certain  knowl- 
edge of  the  truth,  as  judge.  And  the  Steward  of  our  household 
shall  take  our  place  within  the  verge  of  our  household ;    and  his 


68  HISTORY  OF  THE  COMMON  LAW 

office  shall  extend  to  the  hearing  and  determining  the  presentments 
of  the  articles  of  our  Crown,  when  we  shall  see  good. 

3.  Further,  we  will  that  Justices  Itinerant  be  assigned  to  hear 
and  determine  the  same  articles  in  every  county  and  franchise  every 
seven  years;  and  that  our  Chief  Justices  of  Ireland  and  Chester 
have  the  like  power. 

4.  With  respect  to  the  Justices  assigned  to  follow  us  and  hold 
our  place  wheresoever  we  shall  be  in  England,  we  will  that  they 
have  cognizance  of  amending  false  judgments,  and  of  determining 
appeals  and  other  pleas  of  trespass  committed  against  our  peace, 
and  that  their  jurisdiction  and  record  shall  extend  so  far  as  we  shall 
authorize  by  our  writs. 

5.  We  will  that  the  Earl  of  Norfolk,  by  himself  or  another  knight, 
be  attendant  upon  us  and  upon  our  Steward,  to  execute  our  com- 
mands and  the  attachments  and  executions  of  our  judgments  and 
those  of  our  Steward  throughout  the  verge  of  our  house,  so  long 
as  he  shall  hold  the  office  of  Marshal. 

6.  In  our  household  let  there  be  a  Coroner  to  execute  the  busi- 
ness of  the  Crown  throughout  the  verge  and  wheresoever  we  shall 
be  or  come  within  our  realm;  and  let  the  same  person  or  some 
other  be  assigned  to  assay  all  weights  and  measures  in  every  our 
verge  throughout  our  realm  according  to  our  standards;  and  these 
two  duties  he  shall  not  fail  to  do  by  reason  of  any  franchise,  unless 
such  franchise  be  granted  in  fee  farm  or  in  alms  by  us  or  our  pre- 
decessors. 

7.  In  every  county  let  there  be  a  sheriff  who  shall  be  attendant 
on  our  commands  and  those  of  our  Justices;  and  let  him  have 
record  of  pleas  pleaded  before  him  by  our  writs;  and  under  the 
sheriffs  let  there  be  hundredres  Serjeants  and  beadles  attendant 
on  the  sheriffs.  And  in  every  county  let  there  be  coroners  chosen 
for  keeping  the  pleas  of  our  peace,  as  shall  be  authorized  in  the 
chapters  concerning  their  office,  and  let  them  have  record  of  things 
relating  to  their  office. 

8.  Moreover  our  will  is,  that  there  be  Justices  constantly  re- 
maining at  Westminster,  or  at  such  other  place  as  we  shall  be 
pleased  to  ordain,  to  determine  common  pleas  according  as  we 
shall  authorize  them  by  our  writs;  and  these  Justices  shall  have 
record  of  the  proceedings  held  before  them  by  virtue  of  our  writs. 

9.  Also  our  will  is,  that  at  our  Exchequers  at  Westminster  and 
elsewhere,  our  Treasurers  and  our  Barons  there  have  jurisdiction 
and  record  of  things  which  concern  their  office,  and  to  hear  and 


THE  KING'S  COURTS  69 

determine  all  causes  relating  to  our  debts  and  seignorics  and  things 
incident  thereto,  without  which  such  matters  could  not  be  tried; 
and  that  they  have  cognizance  of  debts  owing  to  our  debtors,  by 
means  whereof  we  may  the  more  speedily  recover  our  own. 

10.  And  we  will,  that  Justices  be  assigned  in  every  county  to 
have  cognizance  in  such  causes  of  petty  assizes  and  other  matters, 
as  we  shall  assign  them  by  our  letters  patent,  of  which  causes  we 
will  that  they  have  record.  Let  Justices  also  be  appointed  to 
deliver  the  gaols  in  every  county,  once  in  every  pleadable  w^eek, 
while  they  find  anything  to  do;  and  let  them  likewise  have  record 
of  the  pleas  brought  before  them  and  of  their  judgments. 

11.  And  although  we  have  granted  to  our  Justices  to  bear  record 
of  pleas  pleaded  before  them,  yet  we  will  not  that  their  record 
be  any  warrant  to  them  in  their  own  wrong,  nor  that  they  be  per- 
mitted to  erase  their  rolls  or  amend  them  or  record  contrary  to 
the  enrollment.  And  we  will  that  the  power  of  our  Justices  be 
limited  in  this  manner,  that  they  go  not  beyond  the  articles  of 
our  writs,  or  of  presentments  of  jurors,  or  of  plaints  before  them 
made,  save  that  they  shall  have  the  cognizance  of  vouchers  to  war- 
ranty, and  of  other  incidental  matters  without  which  the  original 
causes  could  not  be  determined.  And  we  forbid,  that  any  have 
power  of  amending  any  false  judgment  of  our  Justices,  except  the 
Justices  who  follow  us  in  our  Court,  who  are  authorized  by  us 
for  that  purpose,  or  ourselves,  with  our  Council ;  for  this  we  specially 
reserve  to  our  own  jurisdiction. 

12.  We  forbid  all  our  Coroners  and  Justices,  and  all  others  to 
whom  we  have  given  authority  of  record,  that  any,  except  our 
Steward  and  our  Justices  of  Ireland  and  of  Chester,  without  our 
leave  substitute  another  in  his  place,  to  .do  any  act  of  which  he 
himself  ought  to  make  record;  and  if  anything  be  done  before 
such  substitutes,  w^e  will  that  it  be  of  no  force,  though  it  should 
be  of  abjuration  or  outlawry. 

Extracts  from  Coke's  Fourth  Institute. 

[Court  of  King's  Bench.]  Under  these  words  (proprias  causas) 
are  included  three  things.  First,  all  pleas  of  the  crowne;  as  all 
manners  of  treasons,  felonies,  and  other  pleas  of  the  crown  which 
ex  congruo,  are  aptly  called  propriae  causae  regis,  because  they  are 
placita  coronae  regis.  Secondly,  regularly  to  examine  and  correct 
all  and  all  manner  of  errors  in  fait,  and  in  law,  of  all  the  judges  and 
justices  of  the  realm  in  their  judgments,  processe,  and  proceedings 


70  HISTORY  OF  THE  COMMON  LAW 

in  courts  of  record,  and  not  only  in  pleas  of  the  crown,  but  in  all 
pleas,  reall,  personall,  and  mixt  (the  court  of  the  exchecquer  ex- 
cepted, as  hereafter  shall  appear).  And  this  is  proprinm  quarto 
modo  to  the  king  in  this  court:  for  regularly  no  other  court  hath 
the  like  jurisdiction,  and  therefore  may  be  well  called  propria 
causa  regis.  And  these  two  be  of  high  and  soveraign  jurisdiction. 
Thirdly,  this  court  hath  not  only  jurisdiction  to  correct  errors  in 
judiciall  proceedings,  but  other  errors  and  misdemeanors  extra- 
judicial! tending  to  the  breach  of  the  peace  or  oppression  of  the 
subjects,  or  raising  of  faction,  controversy,  debate,  or  any  other 
manner  of  misgovernment ;  so  that  no  wrong  or  injury,  either  pub- 
lick  or  private,  can  be  done,  but  that  this  shall  be  reformed  or 
punished  in  one  court  or  other  by  due  course  of  law.  As  if  any 
person  be  committed  to  prison,  this  court  upon  motion  ought  to 
grant  an  habeas  corpus,  and  upon  returne  of  the  cause  do  justice 
and  relieve  the  party  wronged.  And  this  may  be  done  though 
the  party  grieved  hath  no  privilege  in  this  court.  It  granteth 
prohibitions  to  courts  temporal!  and  eclesiasticall,  to  keep  them 
within  their  proper  jurisdiction.  Also  this  court  may  baile  any 
person  for  any  offence  whatsoever.  Fourthly,  this  court  may  hold 
plea  by  writ  out  of  the  chancery  of  all  trespass  done  vl  et  armis, 
of  replevins,  of  quare  impedit,  &c.  Fifthly,  this  court  hath  power 
to  hold  plea  by  bill  for  debt,  detinue,  covenant,  promise,  and 
all  other  personall  actions,  ejectione  firmae,  and  the  like,  against 
any  that  is  in  custodia  mareschalli,  or  any  officer,  minister,  or 
clerk  of  the  court:  and  the  reason  hereof  is,  for  that  if  they 
should  be  sued  in  any  other  court  they  should  ha\e  the  priviledge 
of  this  court;  and  lest  there  should  be  a  fayler  of  justice  (which 
is  so  much  abhorred  in  law)  they  shall  be  impleaded  here  by  bill 
though  these  actions  be  common  pies,  and  are  not  restrained 
by  the  said  act  of  Magna  Charta,  ubi  supra.  Likewise  the 
officers,  ministers,  and  clerks  of  this  court  priviledged  by  law  in 
respect  of  their  necessary  attendance  in  court,  may  impleadc  others 
by  bill  in  the  actions  foresaid. 

[Court  of  Common  Pleas.]  Out  of  these,  three  things  are  to 
be  observed:  first  what  shall  be  said  communia  placita.  They  are 
not  called  communia  placita  in  respect  of  the  persons,  but  in  respect 
of  tlic  ([uality  of  the  pleas.  Regularly  pleas  are  divided  into  pleas 
of  the  crowne,  and  into  common  or  civil  pleas.  Pleas  of  the  crowne 
are  treason  and  felony,  and  misprision  of  treason  and  felony,  &c. 
This  court  is  the  lock  and  the  key  of  the  common  law  in  common 


THE  KING'S  COURTS  71 

pleas,  for  herein  are  reall  actions,  whereupon  fines  and  recoveries 
(the  common  assurances  of  the  reahii)  do  passe,  and  all  other  reall 
actions  by  originall  writs  are  to  be  determined,  and  also  of  all  com- 
mon pleas  mixt  or  personall:  in  divers  of  which,  as  it  appeareth 
before  in  the  chapter  of  the  King's  Bench,  this  court  and  the  king's 
bench  have  a  concurrent  authority.  .  .  . 

So  as  in  the  exchecquer  there  are  these  seven  courts.  1.  The 
court  of  pleas.  2.  The  court  of  accounts.  3.  Thecourt  of  receipt. 
4.  The  court  of  the  exchecquer  chamber  being  the  assembly  of  all 
the  judges  of  England  for  matters  in  law.  5.  The  court  of  exchec- 
quer chamber  for  errors  in  the  court  of  exchecquer.  6.  A  court 
in  the  exchecquer  chamber  for  errors  in  the  king's  bench.  7.  This 
court  of  equity  in  the  exchecquer  chamber.   .   .  . 

[Of  Writs  of  Error  in  Parliament.]  If  a  judgment  be  given  in 
the  king's  bench  either  upon  a  writ  of  error,  or  otherwise,  the 
party  grieved  may  upon  a  petition  of  right  made  to  the  king  in 
English,  or  in  French  (which  is  not  ex  debito  justitiae,  but  for  de- 
cency, for  that  the  former  judgment  was  given  coram  rege)  and  his 
answer  thereunto,  fiat  justitia,  have  a  writ  of  error  directed  to  the 
chief  justice  of  the  king's  bench  for  removing  of  the  record  in 
praesens  parliamenhim,  and  thereupon  the  roll  itself,  and  a  trans- 
cript in  parchment  is  to  be  brought  by  the  chief  justice  of  the 
king's  bench  into  the  lords'  house  in  parliament:  and  after  the 
transcript  in  parchment  is  examined  by  the  court  with  the  record, 
the  chief  justice  carrieth  back  the  record  itself  into  the  king's  bench, 
and  then  the  plaintife  is  to  assign  the  errors,  and  thereupon  to  have 
a  scire  fac'  against  the  adverse  party,  returnable  either  in  that  par- 
liament, or  the  next;  and  the  proceeding  thereupon  shall  be  super 
tenorem  recordi,  et  non  super  recordum.  And  the  proceeding  upon 
the  writ  of  error  is  only  before  the  lords  in  the  upper  house,  secun- 
dum legem  et  consuetudinem  parliamenti. 

Blackstone,  Commentaries,  III,  55,  57. 

The  next  court  that  I  shall  mention  is  one  that  hath  no  original 
jurisdiction,  but  is  only  a  court  of  appeal,  to  correct  the  errors  of 
other  jurisdictions.  This  is  the  court  of  exchequer  chamber ;  which 
was  first  erected  by  statute  31  Edw.  Ill,  c.  12,  to  determine  causes 
by  writs  of  error  from  the  common  law  side  of  the  court  of  ex- 
chequer. And  to  that  end  it  consists  of  the  lord  chancellor  and 
lord  treasurer,  taking  unto  them  the  justices  of  the  king's  bench  and 


72  HISTORY  OF  THE  COMMON  LAW 

common  pleas.  In  imitation  of  which  a  second  court  of  exchequer 
chamber  was  erected  by  statute  27  Eliz.,  c.  8,  consisting  of  the 
justices  of  the  common  pleas,  and  the  barons  of  the  exchequer; 
before  whom  writs  of  error  may  be  brought  to  reverse  judgments  in 
certain  suits  originally  begun  in  the  court  of  king's  bench.  Into 
the  court  also  of  exchequer  chamber  (which  then  consists  of  all 
the  judges  of  the  three  superior  courts,  and  now  and  then  the  lord 
chancellor  also),  are  sometimes  adjourned  from  the  other  courts 
such  causes,  as  the  judges  upon  argument  find  to  be  of  great  w^eight 
and  difficulty,  before  any  judgment  is  given  upon  them  in  the  court 
below.  From  all  the  branches  of  this  court  of  exchequer  chamber 
a  writ  of  error  lieth  to  the  House  of  Peers. 

Before  I  conclude  this  chapter,  I  must  also  mention  an  eleventh 
species  of  courts,  of  general  jurisdiction  and  use,  which  are  derived 
out  of,  and  act  as  collateral  auxiliaries  to,  the  foregoing;  I  mean 
the  courts  of  assize  and  nisi  prius. 

These  are  composed  of  two  or  more  commissioners,  who  are 
twice  in  every  year  sent  by  the  king's  special  commission  all  round 
the  kingdom  (except  London  and  Middlesex,  where  courts  of  nisi 
prius  are  holden  in  and  after  every  term,  before  the  chief  or  other 
judge  of  the  several  superior  courts;  and  except  the  four  northern 
counties,  where  the  assizes  are  holden  only  once  a  year),  to  try 
by  a  jury  of  the  respective  counties  the  truth  of  such  matters  of 
fact  as  are  then  under  dispute  in  the  courts  of  Westminster  hall. 
These  judges  of  assize  came  into  use  in  the  room  of  the  ancient 
justices  in  eyre,  justiciarii  in  itinere. 

Smith,  Actions  at  Law  (3  ed.  1847),  8. 

And,  though  the  Queen's  Bench  and  exchequer  had  at  first,  as 
has  been  explained,  no  jurisdiction  over  purely  civil  causes,  those 
being  all  entrusted  to  the  Common  Pleas,  yet,  by  a  series  of  fictions, 
they  contrived  to  draw  all  personal  actions  within  their  juris- 
diction. For  the  Queen's  Bench  declared  that  a  person  in  the 
custody  of  its  marshal  was  before  it  for  every  purpose,  and,  as  actions 
of  trespass  were  considered  to  be  still  within  its  jurisdiction,  being 
of  a  criminal  nature,  and  a  fine  payable  to  the  Crown  by  the  de- 
fendant, the  ])laintifif  was  permitted  to  issue  a  writ  charging  the 
defendant  with  a  trespass,  which  being  then  a  cause  for  which  a 
man  might  be  arrested,  he  was  taken  and  committed  to  the  Mar- 
shalsea;  and,  being  once  there,  the  i:)laintiff  might  declare  against 
him  for  any  cause  of  action.     Afterwards,  they  carried  the  principle 


THE  KING'S  COURTS  73 

further,  and  held,  that  the  defendant's  appearance  or  putting  in  bail 
would  answer  the  same  purpose;  for  that  in  those  cases,  though 
not  in  the  real,  he  was  in  the  constructive  custody  of  the  marshal. 
And,  therefore,  till  a  few  years  since,  all  writs  issuing  out  of  the 
Queen's  Bench  described  the  cause  of  action  to  be  trespass,  in  bail- 
able cases,  mentioning  the  real  ground  afterwards  in  an  ac  etiam 
clause,  as  if  it  were  merely  subsidiary  to  the  fictitious  one;  and 
every  declaration  by  bill  in  the  Queen's  Bench  stated  the  defendant 
to  be  in  the  custody  of  the  Marshal  of  Marshalsea.  As  to  the 
Court  of  Exchequer,  that  tribunal  adopted  a  simpler  mode  of  ex- 
tending its  jurisdiction;  for  the  plaintiff  in  his  writ  and  declaration 
stated  that  he  was  a  debtor  to  the  king,  and  less  able  to  pay  his  debts 
by  reason  of  the  defendant's  conduct;  and  this,  though  in  ninety- 
nine  cases  out  of  a  hundred  a  mere  fiction,  was  not  allowed  to  be 
contradicted,  and  was  held  to  render  the  cause  of  action  a  matter 
affecting  the  revenue,  so  as  to  invest  the  exchequer  with  a  juris- 
diction over  it;  thus  did  the  Courts  of  Queen's  Bench  and  Ex- 
chequer obtain  a  jurisdiction  co-extensive  with  that  of  the  Common 
Pleas  in  actions  personal;  a  jurisdiction  which  the  Uniformity  of 
Process  Act  now  recognises  and  confirms,  while  it  abolishes  the 
fictions  by  which  it  was  acquired. 

Such  being  a  slight  history  of  the  superior  courts,  the  subject  next 
to  be  inquired  into  is  their  present  constitution.  The  first  objects 
which  engage  our  attention  while  occupied  on  this  part  of  the  sub- 
ject are  the  Judges,  of  whom  there  are  in  each  court  five,  in  the 
Queen's  Bench  and  Common  Pleas  a  chief  justice  created  by  writ 
and  four  puisne  judges  created  by  patent.  In  the  Exchequer,  a 
chief  baron  and  four  puisne  barons  created  by  patent.  The  number 
which  often  varied,  was  in  each  Court  for  a  long  time  four,  but  was 
increased  to  five  by  Stat.  1  Wm.  4,  c.  70. 

Supreme  Court  of  Judicature  Act,  1873. 

An  Act  for  the  constitution  of  a  Supreme  Court,  and  for  other 
purposes  relating  to  the  better  Administration  of  Justice  in  England ; 
and  to  authorise  the  transfer  to  the  Appellate  Division  of  such 
Supreme  Court  of  the  Jurisdiction  of  the  Judicial  Committee  of 
Her  Majesty's  Privy  Council.     (5th  August,  1873.) 

Be  it  enacted  by  the  Queen's  most  Excellent  Majesty,  by  and 
with  the  advice  and  consent  of  the  Lords  Spiritual  and  Temporal, 
and  Commons,  in  this  present  Parliament  assembled,  and  by  the 
authority  of  the  same,  as  follows: 


74  HISTORY  OF  THE  COMMON  LAW 

1.  This  Act  may  be  cited  for  all  purposes  as  the  "Supreme 
Court  of  Judicature  Act,  1873." 

2.  This  Act,  except  any  pro\ision  thereof  which  is  declared  to 
take  effect  on  the  passing  of  this  Act,  shall  commence  and  come 
into  operation  on  the  second  day  of  November  1874. 

3.  From  and  after  the  time  appointed  for  the  commencement 
of  this  Act,  the  several  Courts  herein-after  mentioned,  (that  is  to 
say),  the  High  Court  of  Chancery  of  England,  the  Court  of  Queen's 
Bench,  the  Court  of  Common  Pleas  at  Westminster,  the  Court  of 
Exchequer,  the  High  Court  of  Admiralty,  the  Court  of  Probate, 
the  Court  for  Divorce  and  Matrimonial  Causes,  and  the  London 
Court  of  BankruptC3%  shall  be  united  and  consolidated  together, 
and  shall  constitute,  under  and  subject  to  the  provisions  of  this 
Act,  one  Supreme  Court  of  Judicature  in  England. 

4.  The  said  Supreme  Court  shall  consist  of  two  permanent 
Divisions,  one  of  which,  under  the  name  of  "Her  Majesty's  High 
Court  of  Justice,"  shall  have  and  exercise  original  jurisdiction, 
with  such  appellate  jurisdiction  from  inferior  Courts  as  is  herein- 
after mentioned,  and  the  other  of  which,  under  the  name  of  "Her 
Majesty's  Court  of  Appeal,"  shall  have  and  exercise  appellate 
jurisdiction,  with  such  original  jurisdiction  as  herein-after  men- 
tioned as  may  be  incident  to  the  determination  of  any  appeal. 

5.  Her  Majesty's  High  Court  of  Justice  shall  be  constituted 
as  follows:  —  The  first  Judges  thereof  shall  be  the  Lord  Chancellor, 
The  Lord  Chief  Justice  of  England,  the  Master  of  the  Rolls,  the 
Lord  Chief  Justice  of  the  Common  Pleas,  the  Lord  Chief  Baron  of 
the  Exchequer,  the  several  Vice-Chahcellors  of  the  High  Court  of 
Chancery,  the  Judge  of  the  Court  of  Probate  and  of  the  Court  for 
Divorce  and  Matrimonial  Causes,  the  se\eral  Puisne  Justices  of  the 
Courts  of  Queen's  Bench  and  Common  Pleas  respectively,  the 
several  Junior  Barons  of  the  Court  of  Exchequer,  and  the  Judge  of 
the  High  Court  of  Admiralty,  except  such,  if  any,  of  the  aforesaid 
Judges  as  shall  be  appointed  ordinary  Judges  of  the  Court  of 
Appeal. 

All  the  Judges  of  the  said  (\)urt  shall  have  in  all  respects,  save 
as  in  this  Act  is  otherwise  expressly  provided,  equal  power,  author- 
ity, and  jurisdiction;  and  shall  be  addressed  in  the  manner  which  is 
now  customary  in  addressing  the  Judges  of  the  Superior  Courts  of 
Common  Law. 


THE  KING'S  COURTS  75 

The  Lord  Chief  Justice  of  England  for  the  time  being  shall  be 
President  of  the  said  High  Court  of  Justice  in  the  absence  of  the 
Lord  Chancellor, 

6.  Her  Majesty's  Court  of  Appeal  shall  be  constituted  as  follows: 
There  shall  be  five  ex  officio  Judges  thereof,  and  also  so  many  ordi- 
nary Judges  (not  exceeding  nine  at  any  one  time)  as  Her  Majesty 
shall  from  time  to  time  appoint.  The  ex  officio  Judges  shall  be  the 
Lord  Chancellor,  the  Lord  Chief  Justice  of  England,  the  Master 
of  the  Rolls,  the  Lord  Chief  Justice  of  the  Common  Pleas,  and 
the  Lord  Chief  Baron  of  the  Exchequer.  The  first  ordinary  Judges 
of  the  said  Court  shall  be  the  existing  Lords  Justices  of  Appeal  in 
Chancery,  the  existing  salaried  Judges  of  the  Judicial  Committee 
of  Her  Majesty's  Privy  Council,  appointed  under  the  "Judicial 
Committee  Act,  1871,"  and  such  three  other  persons  as  Her 
Majesty  may  be  pleased  to  appoint  by  Letters  Patent;  such 
appointment  may  be  made  either  within  one  month  before  or  at 
any  time  after  the  day  appointed  for  the  commencement  of  this 
Act,  but  if  made  before  shall  take  effect  at  the  commencement  of 
this  Act. 

The  Lord  Chancellor  for  the  time  being  shall  be  President  of  the 
Court  of  Appeal. 

8.  Any  barrister  of  not  less  than  ten  years  standing  shall  be 
qualified  to  be  appointed  a  Judge  of  the  said  High  Court  of  Justice; 
and  any  person  who  if  this  Act  had  not  passed  would  have  been 
qualified  by  law  to  be  appointed  a  Lord  Justice  of  the  Court  of 
Appeal  in  Chancery,  or  has  been  a  Judge  of  the  High  Court  of 
Justice  of  not  less  than  one's  year  standing,  shall  be  qualified  to 
be  appointed  an  ordinary  Judge  of  the  said  Court  of  Appeal:  Pro- 
vided, that  no  person  appointed  a  Judge  of  either  of  the  said  Courts 
shall  henceforth  be  required  to  take,  or  to  have  taken,  the  degree 
of  Serjeant-at-Law. 

9.  All  the  Judges  of  the  High  Court  of  Justice,  and  of  the  Court 
of  Appeal  respectively,  shall  hold  their  ofiices  for  life,  subject  to  a 
power  of  removal  by  Her  Majesty,  on  an  address  presented  to  Her 
Majesty  by  both  Houses  of  Parliament.  No  Judge  of  either  of  the 
said  Courts  shall  be  capable  of  being  elected  to  or  of  sitting  in  the 
House  of  Commons.  Every  Judge  of  either  of  the  said  Courts 
(other  than  the  Lord  Chancellor)  when  he  enters  on  the  execution 
of  his  office,  shall  take,  in  the  presence  of  the  Lord  Chancellor,  the 


76  HISTORY  OF  THE  COMMON   LAW 

oath  of  allegiance,  and  judicial  oath  as  defined  by  the  Promissory 
Oaths  Act,  18G8.  The  oaths  to  be  taken  by  the  Lord  Chancellor 
shall  be  the  same  as  heretofore. 

16.  The  High  Court  of  Justice  shall  be  a  Superior  Court  of 
Record,  and,  subject  as  in  this  Act  mentioned,  there  shall  be  trans- 
ferred to  and  vested  in  the  said  High  Court  of  Justice  the  jurisdic- 
tion which,  at  the  commencement  of  this  Act,  was  vested  in,  or 
capable  of  being  exercised  by,  all  or  any  of  the  Courts  following; 
(that  is  to  say), 

(1)  The  High  Court  of  Chancery,  as  a  Common  Law  Court  as 
well  as  a  Court  of  Equity,  including  the  jurisdiction  of  the  Master  of 
the  Rolls,  as  a  Judge  or  Master  of  the  Court  of  Chancery,  and 
any  jurisdiction  exercised  by  him  in  relation  to  the  Court  of  Chan- 
cery as  a  Common  Law  Court; 

(2)  The  Court  of  Queen's  Bench ; 

(3)  The  Court  of  Common  Pleas  at  Westminster; 

(4)  The  Court  of  Exchequer,  as  a  Court  of  Revenue,  as  well  as  a 
Common  Law  Court; 

(5)  The  High  Court  of  Admiralty; 

(6)  The  Court  of  Probate ; 

(7)  The  Court  for  Divorce  and  Matrimonial  Causes; 

(8)  The  London  Court  of  Bankruptcy; 

(9)  The  Court  of  Common  Pleas  at  Lancaster; 

(10)  The  Court  of  Pleas  at  Durham ; 

(11)  The  Courts  created  by  Commissioners  of  Assize,  of  Oyer 
and  Terminer,  and  of  Gaol  Delivery,  or  any  of  such  Commissions. 

The  jurisdiction  by  this  Act  transferred  to  the  High  Court  of 
Justice  shall  include  (subject  to  the  exceptions  herein- after  con- 
tained) the  jurisdiction  which,  at  the  commencement  of  this  Act, 
was  vested  in,  or  capable  of  being  exercised  by,  all  or  any  one  or  more 
of  the  Judges  of  the  said  Courts,  respectively,  sitting  in  Court  or 
Chambers,  or  elsewhere,  when  acting  as  Judges  or  a  Judge,  in  pur- 
suance of  any  statute,  law,  or  custom,  and  all  powers  given  to  any 
such  Court,  or  to  any  such  Judges  or  Judge,  by  any  statute;  and 
also  all  ministerial  powers,  duties,  and  authorities,  incident  to  any 
and  every  part  of  the  jurisdictions  so  transferred. 

18.  The  Court  of  Appeal  established  by  this  Act  shall  be  a 
Superior  Court  of  Record,  and  there  shall  be  transferred  to  and 


THE  KING'S  COURTS  77 

vested  in  such  Court  all  jurisdiction  and  powers  of  the  Courts  fol- 
lowing; (that  is  to  say), 

(1)  All  jurisdiction  and  powers  of  the  Lord  Chancellor  and  of  the 
Court  of  Appeal  in  Chancery,  in  the  exercise  of  his  and  its  appel- 
late jurisdiction,  and  of  the  same  Court  as  a  Court  of  Appeal  in 
Bankruptcy: 

(2)  All  jurisdiction  and  powers  of  the  Court  of  Appeal  in  Chancery 
of  the  county  palatine  of  Lancaster,  and  all  jurisdiction  and  powers 
of  the  Chancellor  of  the  duchy  and  county  palatine  of  Lancaster 
when  sitting  alone  or  apart  from  the  Lords  Justices  of  Appeal  in 
Chancery  as  a  Judge  of  re-hearing  or  appeal  from  decrees  or  orders 
of  the  Court  of  Chancery  of  the  county  palatine  of  Lancaster: 

(3)  All  jurisdiction  and  powers  of  the  Court  of  the  Lord  Warden 
of  the  Stannaries  assisted  by  his  assessors,  including  all  jurisdic- 
tion and  powers  of  the  said  Lord  Warden  when  sitting  in  his  capac- 
ity of  Judge: 

(4)  All  jurisdiction  and  powers  of  the  Court  of  Exchequer  Chamber : 

(5)  All  jurisdiction  vested  in  or  capable  of  being  exercised  by 
Her  Majesty  in  Council,  or  the  Judicial  Committee  of  Her  Majesty's 
Privy  Council,  upon  appeal  from  any  judgment  or  order  of  the 
High  Court  of  Admiralty,  or  from  any  order  in  lunacy  made  by  the 
Lord  Chancellor,  or  any  other  person  having  jurisdiction  in  lunacy. 

19.  The  said  Court  of  Appeal  shall  have  jurisdiction  and  power 
to  hear  and  determine  Appeals  from  any  judgment  or  order,  save 
as  hereinafter  mentioned,  of  Her  Majesty's  High  Court  of  Justice, 
or  of  any  Judges  or  Judge  thereof,  subject  to  the  provisions  of  this 
Act,  and  to  such  Rules  and  Orders  of  Court  for  regulating  the 
terms  and  conditions  on  which  such  appeals  shall  be  allowed, 
as  may  be  made  pursuant  to  this  Act. 

For  all  the  purposes  of  and  incidental  to  the  hearing  and  deter- 
mination of  any  Appeal  within  its  jurisdiction,  and  the  amendment, 
execution,  and  enforcement  of  any  judgment  or  order  made  on  any 
such  appeal,  and  for  the  purpose  of  every  other  authority  expressly 
given  to  the  Court  of  Appeal  by  this  Act,  the  said  Court  of  Appeal 
shall  have  all  the  power,  authority,  and  jurisdiction  by  this  Act 
vested  in  the  High  Court  of  Justice. 

3L  For  the  more  convenient  despatch  of  business  in  the  said 
High  Court  of  Justice  (but  not  so  as  to  prevent  any  Judge  from 
sitting  whenever  required  in  any  Divisional  Court,  or  for  any  Judge 
of  a  different  Division  from  his  own)  there  shall  be  in  the  said 
High  Court  five  Divisions  consisting  of  such  number  of  Judges 


78  HISTORY  OF  THE  COMMON  LAW 

respectively  as  herein-after  mentioned.  Such  five  Divisions  shall 
respectively  include,  immediately  on  the  commencement  of  this 
Act,  the  several  Judges  following;  (that  is  to  say), 

(1)  One  Division  shall  consist  of  the  following  Judges;  (that  is  to 
say),  the  Lord  Chancellor,  who  shall  be  President  thereof,  the 
Master  of  the  Rolls,  and  the  Vice-Chancellors  of  the  Court  of 
Chancery,  or  such  of  them  as  shall  not  be  appointed  ordinary 
Judges  of  the  Court  of  Appeal: 

(2)  One  other  Division  shall  consist  of  the  following  Judges; 
(that  is  to  say),  The  Lord  Chief  Justice  of  England,  who  shall  be 
President  thereof,  and  such  of  the  other  Judges  of  the  Court  of 
Queen's  Bench  as  shall  not  be  appointed  ordinary  Judges  of  the 
Court  of  Appeal : 

(3)  One  other  Division  shall  consist  of  the  following  Judges; 
(that  is  to  say),  The  Lord  Chief  Justice  of  the  Common  Pleas,  who 
shall  be  President  thereof,  and  such  of  the  other  Judges  of  Court 
of  Common  Pleas  as  shall  not  be  appointed  ordinary  Judges  of  the 
Court  of  Appeal : 

(4)  One  other  Division  shall  consist  of  the  following  Judges; 
(that  is  to  say),  the  Lord  Chief  Baron  of  the  Exchequer,  who  shall 
be  President  thereof,  and  such  of  the  other  Barons  of  the  Court 
of  Exchequer  as  shall  not  be  appointed  ordinary  Judges  of  the 
Court  of  Appeal: 

(5)  One  other  Division  shall  consist  of  two  Judges  who,  immedi- 
ately on  the  commencement  of  this  Act,  shall  be  the  existing  Judge 
of  the  Court  of  Probate  and  of  the  Court  for  Divorce  and  Matri- 
monial Causes  and  the  existing  Judge  of  the  High  Court  of  Admi- 
ralty, unless  either  of  them  is  appointed  an  ordinary  Judge  to  the 
Court  of  Api^eal.  The  existing  Judge  of  the  Court  of  Probate  shall 
(unless  so  appointed)  be  the  President  of  the  said  Division,  and 
subject  thereto  the  Senior  Judge  of  the  said  Division,  according 
to  the  order  of  Precedence  under  this  Act,  shall  be  President. 

The  said  five  Divisions  shall  be  called  respectively  the  Chancery 
Division,  the  Queen's  Bench  Division,  the  Common  Pleas  Divi- 
sion, the  Exchequer  Division,  and  the  Probate,  Divorce,  and 
Admiralty  Division. 

Any  Judge  of  any  of  the  said  Divisions  may  be  transferred  by 
Her  Majesty,  under  Her  Royal  Sign  Manual,  from  one  to  another 
of  the  said  Divisions. 


THE  KING'S  COURTS  79 

32.  Her  Majesty  in  Council  may  from  time  to  time,  upon  any 
report  or  recommendation  of  the  Council  of  Judges  of  the  Supreme 
Court  herein-after  mentioned,  order  that  any  reduction  or  increase 
in  the  numljer  of  Divisions  of  the  High  Court  of  Justice,  or  in  the 
number  of  the  Judges  of  the  said  High  Court  who  may  be  attached 
to  any  such  Division,  may,  pursuant  to  such  report  or  recommenda- 
tion, be  carried  into  effect;  and  may  give  all  such  further  directions 
as  may  be  necessary  or  proper  for  that  purpose;  and  such  Order 
may  provide  for  the  abolition  on  vacancy  of  the  distinction  of  the 
offices  of  any  of  the  following  Judges,  namely,  the  Chief  Justice  of 
England,  the  Master  of  the  Rolls,  the  Chief  Justice  of  the  Com- 
mon Pleas,  and  the  Chief  Baron  of  the  Exchequer,  which  may  be 
reduced,  and  of  the  salaries,  pensions,  and  patronage  attached  to 
such  offices,  from  the  offices  of  the  other  Judges  of  the  High  Court 
of  Justice,  notwithstanding  anything  in  this  Act  relating  to  the  con- 
tinuance of  such  offices, salaries,  pensions,  and  patronage ;  but  nosuch 
Order  of  Her  Majesty  in  Council  shall  come  into  operation  until 
the  same  shall  have  been  laid  before  each  House  of  Parliament  for 
thirty  days  on  which  that  House  shall  have  sat,  nor  if,  within  such 
period  of  thirty  days,  an  address  is  presented  to  Her  Majesty  by 
either  House  of  Parliament,  praying  that  the  same  may  not  come 
into  operation.  Any  such  Order,  in  respect  whereof  no  such 
address  shall  have  been  presented  to  Her  Majesty,  shall,  from  and 
after  the  expiration  of  such  period  of  thirty  days,  be  of  the  same  force 
and  effect  as  if  it  had  been  herein  expressly  enacted:  Provided 
always,  that  the  total  number  of  the  Judges  of  the  Supreme  Court 
shall  not  be  reduced  or  increased  by  any  such  Order. ^ 

33.  All  causes  and  matters  which  may  be  commenced  in,  or 
which  shall  be  transferred  by  this  Act  to,  the  High  Court  of  Jus- 
tice, shall  be  distributed  among  the  several  Divisions  and  Judges 
of  the  said  High  Court,  in  such  manner  as  may  from  time  to  time 
be  determined  by  any  Rules  of  Court,  or  Orders  of  Transfer,  to  be 
made  under  the  authority  of  this  Act;  and  in  the  meantime,  and 
subject  thereto,  all  such  causes  and  matters  shall  be  assigned  to 
the  said  Divisions  respectively,  in  the  manner  hereinafter  pro- 
vided.    Every  document  by  which  any  cause  or  matter  may  be 

^  Pursuant  to  this  provision,  the  Queen's  Bench  Division,  the  Common  Pleas 
Division  and  the  Exchequer  Division  in  1881  were  merged  in  one,  now  known  as 
the  King's  Bench  Division.  The  powers  that  belonged  to  the  presidents  of  these 
divisions  were  given  to  the  Loid  Chief  Justice  of  the  King's  Bench,  who  is  now 
called  the  Lord  Chief  Justice  of  England. 


80  HISTORY  OF  THE  COMMON  LAW 

commenced  in  the  said  High  Court  shall  be  marked  with  the  name 
of  the  Division,  or  with  the  name  of  the  Judge,  to  which  or  to  whom 
the  same  is  assigned. 

Supreme  Court  of  Judicature  Act,  1875. 

An  Act  to  amend  and  extend  the  Supreme  Court  of  Judicature 
Act,  1873.     (11th  August,  1875.) 

Whereas  it  is  expedient  to  amend  and  extend  the  Supreme  Court 
of  Judicature  Act,  1873: 

Be  it  enacted  by  the  Queen's  most  Excellent  Majesty,  by  and 
with  the  advice  and  consent  of  the  Lords  Spiritual  and  Temporal, 
and  Commons,  in  this  present  Parliament  assembled,  and  by  the 
authority  of  the  same,  as  follows: 

1.  This  Act  shall,  so  far  as  is  consistent  with  the  tenor  thereof, 
be  construed  as  one  with  the  Supreme  Court  of  Judicature  Act, 
1873  (in  this  Act  referred  to  as  the  principal  Act)  and  together  with 
the  principal  Act  may  be  cited  as  the  Supreme  Court  of  Judicature 
Acts,  1873  and  1875,  and  this  Act  may  be  cited  separately  as  the 
Supreme  Court  of  Judicature  Act,  1875. 

2.  This  Act,  except  any  provision  thereof  which  is  declared  to 
take  effect  before  the  commencement  of  this  Act,  shall  commence 
and  come  into  operation  on  the  first  day  of  November,  1875. 

Sections  twenty,  twenty-one,  and  fifty-five  of  the  principal  Act 
shall  not  commence  or  come  into  operation  until  the  first  day  of 
November,  1876,  and  until  the  said  sections  come  into  operation 
an  appeal  may  be  brought  to  the  House  of  Lords  from  any  judg- 
ment or  order  of  the  Court  of  Appeal  herein-after  mentioned  in  any 
case  in  which  any  appeal  or  error  might  now  be  brought  to  the 
House  of  Lords,  or  to  Her  Majesty  in  Council  from  a  similar  judg- 
ment, decree,  or  order  of  any  Court  or  Judge  whose  jurisdiction  is 
by  the  principal  Act  transferred  to  the  High  Court  of  Justice  or  the 
Court  of  Appeal,  or  in  any  case  in  which  leave  to  appeal  shall  be 
given  by  the  Court  of  Appeal. 

4.  Her  Majesty's  Court  of  Appeal,  in  this  Act  and  in  the  prin- 
cipal Act  referred  to  as  the  Court  of  Appeal,  shall  be  constituted  as 
follows:  There  shall  be  five  ex  officio  Judges  thereof,  and  also  so 
many  ordinary  Judges,  not  exceeding  three  at  any  one  time,  as 
Her  Majesty  shall  from  time  to  time  appoint. 

The  ex  officio  Judges  shall  be  the  Lord  Chancellor,  the  Lord 
Chief  Justice  of  England,  the  Master  of  the  Rolls,  the  Lord  Chief 


THE  KING'S  COURTS  81 

Justice  of  the  Common  Pleas,  and  the  Lord  Chief  Baron  of  the 
Exchequer. 

The  first  ordinary  Judges  of  the  said  Court  shall  be  the  present 
Lords  Justices  of  Appeal  in  Chancery,  and  such  one  other  person 
as  Her  Majesty  may  be  pleased  to  appoint  by  Letters  Patent. 
Such  appointment  may  be  made  either  before  or  after  the  com- 
mencement of  this  Act,  but  if  made  before  shall  take  effect  at  the 
commencement  of  the  Act. 

The  ordinary  Judges  of  the  Court  of  Appeal  shall  be  styled 
Justices  of  Appeal. 

The  Lord  Chancellor  may  by  writing  addressed  to  the  President 
of  any  one  or  more  of  the  following  divisions  of  the  High  Court  of 
Justice,  that  is  to  say,  the  Queen's  Bench  Division,  the  Common 
Pleas  Division,  the  Exchequer  Division,  and  the  Probate,  Divorce, 
and  Admiralty  Division,  request  the  attendance  at  any  time, 
except  during  the  times  of  the  spring  or  summer  circuits,  of  an  addi- 
tional Judge  from  such  division  or  divisions,  (not  being  ex  officio 
Judge  or  Judges  of  the  Court  of  Appeal)  at  the  sittings  of  the 
Court  of  Appeal,  and  a  Judge,  to  be  selected  by  the  division  from 
which  his  attendance  is  requested,  shall  attend  accordingly. 

Every  additional  Judge,  during  the  time  that  he  attends  the  sit- 
tings of  Her  Majesty's  Court  of  Appeal,  shall  have  all  the  jurisdic- 
tion and  powers  of  a  Judge  of  the  said  Court  of  Appeal,  but  he  shall 
not  otherwise  be  deemed  to  be  a  Judge  of  the  said  Court,  or  to  have 
ceased  to  be  a  Judge  of  the  division  of  the  High  Court  of  Justice 
to  which  he  belongs. 

Section  fifty-four  of  the  principal  Act  is  hereby  repealed,  and 
instead  thereof  the  following  enactment  shall  take  effect:  No 
Judge  of  the  said  Court  of  Appeal  shall  sit  as  a  Judge  on  the  hear- 
ing of  an  appeal  from  any  judgment  or  order  made  by  himself,  or 
made  by  any  Divisional  Court  of  the  High  Court  of  which  he  was 
and  is  a  member. 

Appellate  Jurisdiction  Act,  1876. 

An  Act  for  amending  the  Law  in  respect  of  the  Appellate  Juris- 
diction of  the  House  of  Lords;  and  for  other  purposes.  (11th 
August,  1876.) 

Be  it  enacted  by  the  Queen's  most  Excellent  Majesty,  by  and 
with  the  advice  and  consent  of  the  Lords  Spiritual  and  Temporal, 
and  Commons,  in  this  present  Parliament  assembled,  and  by  the 
authority  of  the  same,  as  follows: 


82  HISTORY  OF  THE  COMMON  LAW 

1.  This  Act  may  be  cited  for  all  purposes  as  "The  Appellate 
Jurisdiction  Act,  1876." 

2.  This  Act  sFjall,  except  where  it  is  otherwise  expressly  pro- 
vided, come  into  operation  on  the  first  day  of  November,  one 
thousand  eight  hundred  and  seventy-six,  which  day  is  herein-after 
referred  to  as  the  coiumencement  of  this  Act. 

3.  Subject  as  in  this  Act  mentioned  an  appeal  shall  lie  to  the 
House  of  Lords  from  any  order  or  judgment  of  any  of  the  courts 
following;   that  is  to  say, 

(L)    Of  Her  Majesty's  Court  of  Appeal  in  England;   and 
(2.)    Of  any  Court  in  Scotland  from  which  error  or  an  appeal 

at  or  immediately  before  the  commencement  of  this  Act  lay  to  the 

House  of  Lords  by  common  law  or  by  statute;  and 

(3.)    Of  any  Court  in  Ireland  from  which  error  or  an  appeal 

at  or  immediately  before  the  commencement  of  this  Act  lay  to  the 

House  of  Lords,  by  common  law  or  by  statute. 

4.  Every  appeal  shall  be  brought  by  way  of  petition  to  the 
House  of  Lords,  praying  that  the  matter  of  the  order  or  judgment 
appealed  against  may  be  reviewed  before  Her  Majesty  the  Queen  in 
her  Court  of  Parliament,  in  order  that  th6  said  Court  may  deter- 
mine what  of  right,  and  according  to  the  law  and  custom  of  this 
realm,  ought  to  be  done  in  the  subject-matter  of  such  appeal. 

5.  An  appeal  shall  not  be  heard  and  determined  by  the  House 
of  Lords  unless  there  are  present  at  such  hearing  and  determination 
not  less  than  three  of  the  following  persons,  in  this  Act  designated 
Lords  of  Appeal;   that  is  to  say, 

(L)  The  Lord  Chancellor  of  Great  Britain  for  the  time  being; 
and 

(2.)  The  Lords  of  Appeal  in  Ordinary  to  be  appointed  as  in 
this  Act  mentioned ;   and 

(3.)  Such  Peers  of  Parliament  as  are  for  the  time  being  holding 
or  have  held  any  of  the  offices  in  this  Act  described  as  high  judicial 
offices. 

6.  For  the  purpose  of  aiding  the  House  of  Lords  in  the  hearing 
and  determination  of  appeals,  Her  Majesty  may,  at  any  time  after 
the  ])assing  of  this  Act,  by  letters  patent,  appoint  two  qualified 
persons  to  be  Lords  of  Ajjpeal  in  Ordinary,  but  such  appointment 
shall  not  take  effect  until  the  commencement  of  this  Act. 

A  person  shall  not  be  qualified  to  be  appointed  l)y  Her  Majesty 
a  Lord  of  Appeal  in  Ordinary  unless  he  has  been  at  or  before  the 
time  of  his  appointment  the  holder  for  a  period  of  not  less  than  two 


THE  KING'S  COURTS  83 

years  of  some  one  or  more  of  the  offices  in  this  Act  described  as 
high  judicial  offices,  or  has  been  at  or  before  such  time  as  aforesaid, 
for  not  less  than  fifteen  years,  a  practising  barrister  in  England  or 
Ireland,  or  a  practising  advocate  in  Scotland. 

Every  Lord  of  Appeal  in  Ordinary  shall  hold  his  office  during 
good  behaviour,  and  shall  continue  to  hold  the  same  notwithstand- 
ing the  demise  of  the  Crown,  but  he  may  be  removed  from  such 
office  on  the  address  of  both  Houses  of  Parliament. 

There  shall  be  paid  to  every  Lord  of  Appeal  in  Ordinary  a  salary 
of  six  thousand  pounds  a  year. 

Every  Lord  of  Appeal  in  Ordinary,  unless  he  is  otherwise  en- 
titled to  sit  as  a  member  of  the  House  of  Lords,  shall  by  virtue 
and  according  to  the  date  of  his  appointment  be  entitled  during  his 
life  to  rank  as  a  Baron  by  such  style  as  Her  Majesty  be  pleased  to 
appoint,  and  shall  during  the  time  that  he  continues  in  his  office  as  a 
Lord  of  Appeal  in  Ordinary,  and  no  longer,  be  entitled  to  a  writ  of 
summons  to  attend,  and  to  sit  and  vote  in  the  House  of  Lords;  his 
dignity  as  a  Lord  of  Parliament  shall  not  descend  to  his  heirs. 

On  any  Lord  of  Appeal  in  Ordinary  vacating  his  office  by  death, 
resignation,  or  otherwise.  Her  Majesty  may  fill  up  the  vacancy  by 
the  appointment  of  another  qualified  person. 

A  Lord  of  Appeal  in  Ordinary  shall,  if  a  Privy  Councillor,  be  a 
member  of  the  Judicial  Committee  of  the  Privy  Council,  and 
subject  to  the  due  performance  by  a  Lord  of  Appeal  in  Ordinary 
of  his  duties  as  to  the  hearing  and  determining  of  appeals  in  the 
House  of  Lords,  it  shall  be  his  duty,  being  a  Privy  Councillor,  to 
sit  and  act  as  a  member  of  the  Judicial  Committee  of  the  Privy 
Council. 

8.  For  preventing  delay  in  the  administration  of  justice,  the 
House  of  Lords  may  sit  and  act  for  the  purpose  of  hearing  and 
determining  appeals,  and  also  for  the  purpose  of  Lords  of  Appeal 
in  Ordinary  taking  their  seats  and  the  oaths,  during  any  proroga- 
tion of  Parliament,  at  such  time  and  in  such  manner  as  may  be 
appointed  by  order  of  the  House  of  Lords  made  during  the  preced- 
ing session  of  Parliament;  and  all  orders  and  proceedings  of  the 
said  House  in  relation  to  appeals  and  matters  connected  therewith 
during  such  prorogation,  shall  be  as  valid  as  if  Parliament  had  been 
then  sitting,  but  no  business  other  than  the  hearing  and  determina- 
tion of  appeals  and  the  matters  connected  therewith,  and  Lords  of 
Appeal  in  Ordinary  taking  their  seats  and  the  oaths  as  aforesaid, 
shall  be  transacted  by  such  House  during  such  prorogation. 


84  HISTORY  OF  THE  COMMON   LAW 

Any  order  of  the  House  of  Lords  may  for  the  purposes  of  this 
Act  be  made  at  any  time  after  the  passing  of  this  Act. 

9.  If  on  the  occasion  of  a  dissolution  of  Parhament  Her  Majesty 
is  graciously  pleased  to  think  that  it  would  be  expedient,  with  a 
view  to  prevent  delay  in  the  administration  of  justice,  to  provide 
for  the  hearing  and  determination  of  appeals  during  such  dis- 
solution, it  shall  be  lawful  for  Her  Majesty,  by  writing  under  her 
Sign  Manual,  to  authorise  the  Lords  of  Appeal  in  the  name  of  the 
House  of  Lords  to  hear  and  determine  appeals  during  the  dissolu- 
tion of  Parliament,  and  for  that  purpose  to  sit  in  the  House  of 
Lords  at  such  times  as  may  be  thought  expedient;  and  upon  such 
authority  as  aforesaid  being  given  by  her  Majesty,  the  Lords  of 
Appeal  may,  during  such  dissolution,  hear  and  determine  appeals 
and  act  in  all  matters  in  relation  thereto  in  the  same  manner  in  all 
respects  as  if  their  sittings  were  a  continuation  of  the  sittings  of  the 
House  of  Lords,  and  may  in  the  name  of  the  House  of  Lords  exer- 
cise the  jurisdiction  of  the  House  of  Lords  accordingly. 

15.  Whereas  it  is  expedient  to  amend  the  constitution  of  Her 
Majesty's  Court  of  Appeal  in  manner  herein-after  mentioned :  Be 
it  enacted,  that  there  shall  be  repealed  so  much  of  the  fourth  sec- 
tion of  "The  Supreme  Court  of  Judicature  Act,  1875,"  as  provides 
that  the  ordinary  Judges  of  Her  Majesty's  Court  of  Appeal  (in 
this  Act  referred  to  as  "the  Court  of  Appeal")  shall  not  exceed 
three  at  any  one  time. 

In  addition  to  the  number  of  ordinary  Judges  of  the  Court  of 
Appeal  authorised  to  be  appointed  by  "The  Supreme  Court  of 
Judicature  Act,  1875,"  Her  Majesty  may  appoint  three  additional 
ordinary  Judges  of  that  Court. 

Her  Majesty  may  by  writing,  under  Her  Sign  Manual,  either 
before  or  after  the  commencement  of  this  Act,  but  so  as  not  to 
take  effect  until  the  commencement  thereof,  transfer  to  the  Court 
of  Appeal  from  the  following  Divisions  of  the  High  Court  of  Justice, 
that  is  to  say,  the  Queen's  Bench  Division,  the  Common  Pleas 
Division,  and  the  Exchequer  Division,  such  of  the  Judges  of  the 
said  Divisions,  not  exceeding  three  in  numljer,  as  to  Her  Majesty 
may  seem  meet,  each  of  whom  shall  have  been  a  Judge  of  any  one 
or  more  of  such  Divisions  for  not  less  than  two  years  previously  to 
his  appointment,  and  shall  not  be  an  ex  officio  Judge  of  the  Court 
of  Appeal,  and  every  Judge  so  transferred  shall  be  deemed  an  addi- 
tional ordinary  Judge  of  the  Court  of  Appeal  in  the  same  manner 


THE  KING'S  COURTS  85 

as  if  he  had  been  appointed  such  Judge  by  letters  patent.     No  Judge 
shall  be  so  transferred  without  his  own  consent. 

Every  additional  ordinary  Judge  of  the  said  Court  of  Appeal 
appointed  in  pursuance  of  this  Act  shall  be  subject  to  the  provisions 
of  sections  twenty-nine  and  thirty-seven  of  "The  Supreme  Court 
of  Judicature  Act,  1873,"  and  shall  be  under  an  obligation  to  go 
circuits  and  to  act  as  Commissioner  under  commissions  of  assize 
or  other  commissions  authorised  to  be  issued  in  pursuance  of  the 
said  Act,  in  the  same  manner  in  all  respects  as  if  he  were  a  Judge  of 
the  High  Court  of  Justice. 

16.  Orders  for  constituting  and  holding  divisional  courts  of  the 
Court  of  Appeal,  and  for  regulating  the  sittings  of  the  Court  of 
Appeal  and  of  the  divisional  courts  of  appeal,  may  be  made,  and 
when  made,  in  like  manner  rescinded  or  altered,  by  the  President  of 
the  Court  of  Appeal,  with  the  concurrence  of  the  ordinary  Judges  of 
the  Court  of  Appeal,  or  any  three  of  them;  and  so  much  of  section 
seventeen  of  "The  Supreme  Court  of  Judicature  Act,  1875,"  as 
relates  to  the  regulation  of  any  matters  subject  to  be  regulated  by 
orders  under  this  section,  and  so  much  of  any  rules  of  court  as  may 
be  inconsistent  with  any  order  made  under  this  section,  shall  be 
repealed,  without  prejudice  nevertheless  to  any  rules  of  court 
made  in  pursuance  of  the  section  so  repealed,  so  long  as  such  rules 
of  court  remain  unaffected  by  orders  made  in  pursuance  of  this 
section. 

17.  On  and  after  the  first  day  of  December  one  thousand  eight 
hundred  and  seventy-six,  every  action  and  proceeding  in  the  High 
Court  of  Justice,  and  all  business  arising  out  of  the  same,  except  as 
is  herein-after  provided,  shall,  so  far  as  is  practicable  and  con- 
venient, be  heard,  determined,  and  disposed  of  before  a  single  Judge, 
and  all  proceedings  in  an  action  subsequent  to  the  hearing  or  trial, 
and  down  to  and  including  the  final  judgment  or  order,  except  as 
aforesaid,  and  always  excepting  any  proceedings  on  appeal  in  the 
Court  of  Appeal,  shall,  so  far  as  is  practicable  and  convenient,  be 
had  and  taken  before  the  Judge  before  whom  the  trial  or  hearing 
of  the  cause  took  place:  Provided  nevertheless,  that  divisional 
courts  of  the  High  Court  of  Justice  may  be  held  for  the  transaction 
of  any  business  which  may  for  the  time  being  be  ordered  by  rules 
of  court  to  be  heard  by  a  divisional  court;  and  any  such  divisional 
court  when  held  shall  be  constituted  of  two  Judges  of  the  court  and 
no   more,   unless   the    President  of   the    Division   to  which  such 


86  HISTORY  OF  THE  COMMON  LAW 

divisional  court  belongs,  with  the  concurrence  of  the  other  Judges  of 
such  Division,  or  a  majority  thereof,  is  of  opinion  that  such  divi- 
sional court  should  be  constituted  of  a  greater  number  of  Judges 
than  two,  in  which  case,  such  "Court  may  be  constituted  of  such 
number  of  Judges  as  the  President,  with  such  concurrence  as  afore- 
said, may  think  expedient;  nevertheless,  the  decisions  of  a  divi- 
sional court  shall  not  be  invalidated  by  reason  of  such  court  being 
constituted  of  a  greater  number  than  two  Judges;  and 

Rules  of  court  for  carrying  into  effect  the  enactments  contained 
in  this  section  shall  be  made  on  or  before  the  first  day  of  December, 
one  thousand  eight  hundred  and  seventy-six,  and  may  be  after- 
wards altered,  and  all  rules  of  court  to  be  made  after  the  passing 
of  this  Act,  whether  made  under  "The  Supreme  Court  of  Judica- 
ture Act,  1875,"  or  this  Act,  shall  be  made  by  any  three  or  more  of 
the  following  persons,  of  whom  the  Lord  Chancellor  shall  be  one, 
namely,  the  Lord  Chancellor,  the  Lord  Chief  Justice  of  England, 
the  Master  of  the  Rolls,  the  Lord  Chief  Justice  of  the  Common 
Pleas,  the  Lord  Chief  Baron  of  the  Exchequer,  and  four  other 
Judges  of  the  Supreme  Court  of  Judicature,  to  be  from  time  to 
time  appointed  for  the  purpose  by  the  Lord  Chancellor  in  writing 
under  his  hand,  such  appointment  to  continue  for  such  time  and 
subject  to  be  annulled  in  such  manner  as  is  provided  by  "The 
Supreme  Court  of  Judicature  Act,  1875." 

(e)  The  Custom  of  the  Realm 

Blackstone,  Commentaries,  I,  67. 

This  unwritten  or  common  law,  is  properly  distinguishable  into 
three  kinds:  1,  General  customs;  which  are  the  universal  rule  of 
the  whole  kingdom,  and  form  the  common  law,  in  its  stricter  and 
more  usual  signification.  2.  Particular  customs;  which,  for  the 
most  part  afifect  only  the  inhabitants  of  particular  districts.  3.  Cer- 
tain particular  laws;  which,  by  custom,  are  adopted  and  used  by 
some  particular  courts,  of  pretty  general  and  extensive  jurisdiction. 

L  As  to  general  customs,  or  the  common  law  properly  so  called ; 
this  is  that  law,  by  which  proceedings  and  determinations  in  the 
king's  ordinary  courts  of  justice  are  guided  and  directed.  This, 
for  the  most  part,  settles  the  course  by  which  lands  descend  by 
inheritance;  the  manner  and  form  of  acquiring  and  transferring 
property;  the  solemnities  and  obligation  of  contracts;  the  rules  of 
expounding  wills,  deeds,  and  acts  of  parliament;    the  respective 


THE  CUSTOM  OF  THE  REALM  87 

remedies  of  civil  injuries;  the  several  species  of  temporal  offences, 
with  the  manner  and  degree  of  punishment;  and  an  infinite  number 
of  minuter  particulars,  which  diffuse  themselves  as  extensively  as 
the  ordinary  distribution  of  common  justice  requires.  Thus,  for 
example,  that  there  shall  be  four  superior  courts  of  record,  the  Chan- 
cery, the  King's  Bench,  the  Common  Pleas,  and  the  Exchequer;  — 
that  property  may  be  acquired  and  transferred  by  writing;  —  that 
a  deed  is  of  no  validity  unless  sealed  and  delivered;  —  that  wills 
shall  be  construed  more  favorably,  and  deeds  more  strictly;  —  that 
money  lent  upon  bond  is  recoverable  by  action  of  debt ;  — that 
breaking  the  public  peace  is  an  offence,  and  punishable  by  fine  and 
imprisonment ;  —  all  these  are  doctrines  that  are  not  set  down  in  any 
written  statute  or  ordinance,  but  depend  merely  upon  immemorial 
usage,  that  is,  upon  common  law  for  their  support. 

Some  have  divided  the  common  law  into  two  principal  grounds 
or  foundations:  1.  Established  customs;  such  as  that,  where  there 
are  three  brothers,  the  eldest  brother  shall  be  heir  to  the  second,  in 
exclusion  of  the  youngest;  and  2.  Established  rules  and  maxims; 
as,  "that  the  king  can  do  no  wrong,"  "that  no  man  shall  be  bound 
to  accuse  himself,"  and  the  like.  But  I  take  these  to  be  one  and 
the  same  thing.  For  the  authority  of  the  maxims  rests  entirely 
upon  general  reception  and  usage ;  and  the  only  method  of  proving 
that  this  or  that  maxim  is  a  rule  of  the  common  law,  is  by  showing 
that  it  hath  been  always  the  custom  to  observe  it. 

But  here  a  very  natural,  and  very  material,  question  arises:  how 
are  these  customs  or  maxims  to  be  known,  and  by  whom  is  their 
validity  to  be  determined?  The  answer  is,  by  the  judges  in  the 
several  courts  of  justice.  They  are  the  depositaries  of  the  laws; 
the  living  oracles,  who  must  decide  in  all  cases  of  doubt,  and  who 
are  bound  by  an  oath  to  decide  according  to  the  law  of  the  land. 
The  knowledge  of  that  law  is  derived  from  experience  and  study; 
from  the  "viginti  annorum  lucuhrationes,''  which  Fortescue  men- 
tions; and  from  being  long  personally  accustomed  to  the  judicial 
decisions  of  their  predecessors.  And,  indeed,  these  judicial  decisions 
are  the  principal  and  most  authoritative  evidence  that  can  be  given 
of  the  existence  of  such  a  custom  as  shall  form  a  part  of  the  common 
law.  The  judgment  itself,  and  all  proceedings  pre\ious  thereto,  are 
carefully  registered  and  preserved,  under  the  name  of  records,  in  pub- 
lic repositories  set  apart  for  that  particular  purpose;  and  to  them 
frequent  recourse  is  had,  when  any  critical  question  arises,  in  the  de- 
termination of  which  former  precedents  may  give  light  or  assistance. 


88  HISTORY  OF  THE  COMMON  LAW 

Glanvill,  Preface.     Beames's  translation. 

Each  decision  is  go\erncd  by  the  Laws  of  the  Realm,  and  by 
those  Customs  which,  founded  on  reason  in  their  introduction,  have 
for  a  long  time  prevailed ;  and,  what  is  still  more  laudable,  our  King 
disdains  not  to  avail  himself  of  the  advice  of  such  men  (although 
his  subjects)  whom,  in  gravity  of  manners,  in  skill  in  the  Law  and 
Customs  of  the  Realm,  in  the  superiority  of  their  wisdom  and  Elo- 
quence, he  knows  to  surpass  others,  and  whom  he  has  found  by 
experience  most  prompt,  as  far  as  consistent  with  reason,  in  the 
administration  of  Justice,  by  determining  Causes  and  ending  suits, 
acting  now  with  more  severity,  and  now  with  more  lenity,  as  they 
see  most  expedient.  For  the  English  Laws,  although  not  written, 
may  as  it  should  seem,  and  that  without  any  absurdity,  be  termed 
Laws,  (since  this  itself  is  a  Law  —  that  which  pleases  the  Prince 
has  the  force  of  Law)  I  mean,  those  Laws  which  it  is  evident  were 
promulgated  by  the  advice  of  the  Nobles  and  the  authority  of  the 
Prince,  concerning  doubts  to  be  settled  in  their  Assembly.  For,  if 
from  -the  mere  want  of  writing  only,  they  should  not  be  considered 
as  Laws,  then,  unquestionably,  writing  would  seem  to  confer  more 
authority  upon  Laws  themselves,  than  either  the  Equity  of  the 
persons  constituting,  or  the  reason  of  those  framing  them.  But,  to 
reduce  in  every  instance  the  Laws  and  Constitutions  of  the  Realm 
into  writing,  would  be,  in  our  times,  absolutely  impossible,  as  well 
on  account  of  the  ignorance  of  writers,  as  of  the  confused  multi- 
plicity of  the  Laws. 

Bracton,  Bk.  I,  chap.  1,  §  2.     Twiss's  translation. 

Whereas  in  almost  all  countries  they  use  laws  and  written  right, 
England  alone  uses  within  her  boundaries  unwritten  right  and 
custom.  In  England,  indeed,  right  is  derived  from  what  is  un- 
written, which  usage  has  approved.  But  it  will  not  be  absurd  to 
call  the  English  laws,  although  they  are  unwritten,  by  the  name  of 
Laws,  for  everything  has  the  force  of  Law,  whatever  has  been 
rightfully  defined  and  approved  by  the  counsel  and  consent  of  the 
magnates,  with  the  common  warrant  of  the  body  politic,  the  author- 
ity of  the  king  or  the  prince  preceding.  There  are  also  in  England 
sc\eral  and  divers  customs  according  to  the  diversity  of  places: 
for  the  English  have  many  things  by  custom,  which  they  have  not  by 
(written)  law,  as  in  divers  counties,  cities,  boroughs,  and  vills,  where 
it  will  always  have  to  be  inquired,  what  is  the  custom  of  the  place, 
and  in  what  manner,  they  who  allege  a  custom,  observe  the  custom. 


THE  CUSTOM  OF  THE  REALM  89 

Langbridge's  Case,  Common  Pleas,  1345  (Y.  B.  Hil.  19  E. 
3,  No.  3,  Pike's  translation). 
A  writ  was  brought  against  a  tenant  who  made  default  after 
default.  —  Huse.  You  have  here  John,  who  tells  you  that  the  per- 
son who  makes  default  has  only  a  term  for  life,  the  remainder  being 
to  John  and  his  heirs  for  ever.  And  Huse  produced  a  deed  show- 
ing the  gift,  witnessing,  etc.,  and  prayed  that  he  might  be  admitted. — 
R.  Thorpe.  You  see  plainly  that  his  right  is  not  proved  by  record 
or  by  fine,  and  we  cannot  have  any  answer  to  this  deed,  nor  is  it 
an  issue  to  say  that  he  has  nothing  in  remainder;  and,  since  we 
cannot  have  an  answer  to  his  statement,  we  pray  seisin.  —  Shar- 
SHULLE  (J.).  One  has  heard  speak  of  that  which  Bereford  (J.) 
and  Herle  (J.)  did  in  such  a  case,  that  is  to  say,  when  a  remainder 
was  limited  in  fee  simple  by  fine  they  admitted  the  person  in  re- 
mainder to  defend,  and  it  was  said  by  them  that  it  would  be  other- 
wise if  the  limitation  were  by  deed  in  pais;  but  nevertheless,  no 
precedent  is  of  such  force  as  that  which  is  right;  now  it  is  the 
fact  that  one  in  remainder  has  just  as  much  right  by  virtue  of  a 
deed  in  pais  as  by  fine,  save  that  the  fine  is  more  solemn ;  there- 
fore, if  he  would  be  entitled  to  be  admitted  by  virtue  of  a  fine,  for 
the  same  reason  he  is  by  virtue  of  a  deed ;  and  the  demandant  is 
not  in  the  position  of  having  no  answer,  because  he  will  have  the 
same  answer  as  the  tenant  would  have  if  a  writ  of  Formedon  in  the 
remainder  were  brought.  —  R.  Thorpe.  When  any  one  has  a 
reversion,  whether  in  virtue  of  his  own  deed  or  by  grant  of  the 
reversion,  there  is  an  outlying  fact,  which  can  be  put  to  proof  in 
the  shape  of  lease  to  and  attornment  of  the  tenant,  which  fact  is 
traversable;  or  there  may  be  a  plea  that  he  has  nothing  in  reversion; 
but  with  regard  to  this  remainder,  which  is  but  parol,  I  who  am  a 
stranger,  and  cannot  deny  the  specialty,  am  without  answer.  — 
Grene.  You  can  traverse  the  gift  in  the  form  in  which  I  have 
alleged  it,  or  say  that  the  tenant  has  a  fee,  or  that  the  remainder 
was  limited  to  another,  or  that  the  gift  was  made  in  fee  simple, 
absque  hoc  that  the  remainder  itself  was  limited  to  us  as  we  sup- 
pose.—  Birtone.  Suppose  the  tenant  were  impleaded,  and  vouched 
in  respect  of  his  estate,  and  lost,  and  recovered  over  to  the  value, 
would  not  the  person  in  remainder  have  execution  in  respect  of 
this  recovery  to  the  value?  Yes,  he  would  have  it.  And  that 
proves  that  the  tenant,  on  such  a  deed,  holds  in  his  right;  conse- 
quently he  is  entitled  to  be  admitted;  and  otherwise  he  would 
suffer  disherison;    and  if  he  is  admitted  that  is  no  delay  to  the 


90  HISTORY  OF  THE  COMMON  LAW 

demandant,  because  he  will  be  answered  immediately.  —  Hillary 
(J.).  You  say  what  is  true;  and  therefore,  Demandant,  will  you 
say  anything  else  to  oust  him  from  being  admitted? —  R.  Thorpe. 
If  it  so  seems  to  you,  we  are  ready  to  say  what  is  sufficient;  and  I 
think  you  will  do  as  others  have  done  in  the  same  case,  or  else  we 
do  not  know  what  the  law  is.  —  Hillary  (J.).  It  is  the  will  of  the 
Justices. — Stoxore  (J.).  No;  law  is  that  which  is  right.  And 
according  to  the  opinion  of  the  Court  he  is  entitled  to  be  admitted. 
Therefore  Thorpe  said  that  the  tenant  had  a  fee;  ready,  etc.  And 
the  other  side  said  the  contrary. 

Mirror  of  Justices,  chap.  V,  §  1,  No.  3.     Whittaker's  transla- 
tion.^ 
It  is  an  abuse  that  the  laws  and  usages  of  the  realm,  with  their 
occasions,  are  not  put  in  writing,  so  that  they  might  be  published 
and  known  to  all. 

Jefferys  v.  Boosey,  House  of  Lords,  1854  (4  H.  L.  C.  815, 
935-936) 
Pollock,  C.  B.:  The  first  is,  whether  by  the  Common  Law  of 
this  country,  the  author  of  any  published  work  has  an  exclusive 
right  to  multiply  copies,  that  is,  is  entitled  to  what  is  commonly 
called  copyright?  This  is  a  question  upon  which  very  great  names 
and  authorities  are  arrayed  on  either  side.  Some  of  the  greatest 
lawyers  have  been  of  opinion  that  by  the  Common  Law  such  an 
exclusive  right  existed,  while  it  has  been  denied  by  others  of  at 
least  equal  authority.  The  whole  question  is  most  ably  and  elab- 
orately argued  and  discussed  on  both  sides,  and  all  the  authorities 
then  existing  are  collected  with  great  research  in  the  celebrated  case 
of  Millar  v.  Taylor;    and  I  entirely  agree  with  my  brother  Parke, 

^  "The  Mirrour  of  Justices,  also  called  Liber  Justiciariorum,  a  curious  legal 
monument,  probably  written  between  1285  and  1290.  The  text  is  preceded  by 
five  Latin  verses,  in  the  last  of  which  the  writer  calls  himself  Andrew  Horn.  Of 
one  Andrew  Horn,  who  was  chamberlain  of  the  city  of  London  in  1320,  we 
knqw  that  in  1328  he  bequeathed  to  the  London  Guildhall  together  with  other 
books,  his  copy  of  the  Liber  Justiciariorum.  We  do  not  know  the  author,  but 
he  was  hardly  Andrew  Horn.  .  .  .  The  Mirrour  contains  a  mixture  of  fiction 
and  truth.  It  is  the  work  of  an  amateur  jurist,  who,  with  the  conceit  of  superior 
knowledge,  represents  the  law  such  as  in  his  opinion  it  ought  to  be,  as  being  old 
law,  giving  his  unbridled  imagination  full  play,  and  inventing  silly  stories  to 
explain  the  origin  of  legal  institutions."  Brunner,  Sources  of  English  Law, 
Select  Essays  in  Anglo-American  Legal  History,  II,  7,  38. 


THE  CUSTOM  OF  THE  REALM  91 

that  the  weight  of  mere  authority,  including  the  eminent  persons 
who  have  expressed  an  opinion  on  the  subject  since  the  case  of 
Millar  v.  Taylor  was  argued,  is  very  much  against  the  doctrine  of 
a  copyright  existing  at  the  Common  Law. 

In  Mr.  Justice  Willes'  judgment  (giving  a  very  able,  elaborate, 
and  learned  exposition  of  the  whole  subject)  he  appears  to  think 
that,  because  upon  general  principles,  he  has  satisfied  himself  of 
the  justice  and  propriety  of  an  author  possessing  such  a  right, 
therefore  by  the  Common  Law  it  exists.  The  passage  is  a  remark- 
able one,  and  shows  what  were  his  views  of  the  Common  Law,  and 
what,  probably,  he  thought  would  not  be  considered  strange  or 
novel  by  the  rest  of  the  Judges.  It  is  this:  he  is  speaking  of  the 
allowance  of  "copy"  as  a  private  right;  and  he  says,  "It  could  only 
be  done  on  principles  of  private  justice,  moral  fitness,  and  public 
convenience,  which,  when  applied  to  a  new  subject,  make  Com- 
mon Law  without  a  precedent."  My  Lords,  I  entirely  agree  with 
the  spirit  of  this  passage,  so  far  as  it  regards  the  repressing  what 
is  a  public  evil,  and  preventing  what  would  become  a  general  mis- 
chief; but  I  think  there  is  a  wide  difference  between  protecting 
the  community  against  a  new  source  of  danger,  and  creating  a 
new  right.  I  think  the  Common  Law  is  quite  competent  to  pro- 
nounce anything  to  be  illegal  which  is  manifestly  against  the  pub- 
lic good ;  but  I  think  the  Common  Law  cannot  create  new  rights, 
and  limit  and  define  them,  because,  in  the  opinion  of  those  who 
administer  the  Common  Law,  such  rights  ought  to  exist,  according 
to  their  notions  of  what  is  just,  right  and  proper. 

Report  of  Commissioners^  "to  take  into  Consideration 
THE  Practicability  and  Expediency  of  Reducing  to 
A  Systematic  and  Written  Code  the  Common  Law  of 
Massachusetts  or  any  part  thereof"  (1836). 
The  next  inquiry  is,  what  is  the  true  nature  or  character  of  the 
common  law,  so  recognized  and  established,  and  where  are  its  doc- 
trines and  principles  to  be  found?     In  relation  to  the  former  part 
of  the  inquiry,  it  may  be  generally  stated,  that  the  common  law  con- 
sists of  positive  rules  and  remedies,  of  general  usages  and  customs, 
and  of  elementary  principles,  and  the  developments  or  applica- 
tions of  them,  which  cannot  now  be  distinctly  traced  back  to  any 

^The  Commissioners  were:    Joseph  Story,  Theron  Metcalf,  Simon  Greenleaf, 
Charles  E.  Forbes,  Luther  S.  Cushing. 


92  HISTORY  OF  THE  COMMON  LAW 

statutory  enactments,  but  which  rest  for  their  authority  upon  the 
common  recognition,  consent  and  use  of  the  state  itself.  Some  of 
these  rules,  usages  and  principles  are  of  such  high  antiquity,  that 
the  time  cannot  be  assigned  when  they  had  not  an  existence  and 
use.  Others  of  them  are  of  a  comparatively  modern  growth,  ha\"ing 
been  developed  with  the  gradual  progress  of  society;  and  others, 
again,  can  hardly  be  said  to  have  a  visible  and  known  existence 
until  our  own  day.  Thus,  for  example,  many  of  the  rights  and 
remedies,  which  ascertain  and  govern  the  titles  to  real  estate  are 
of  immemorial  antiquity.  On  the  other  hand,  the  law  of  com- 
mercial contracts,  and  especially  the  law  of  insurance,  of  shipping, 
of  bills  of  exchange,  and  of  promissory  notes  has  almost  entirely 
grown  up  since  the  time  (1756)  when  Lord  Mansfield  was  elevated 
to  the  bench.  And  again,  the  law  of  aquatic  rights  and  water 
courses,  and  the  law  of  corporations  can  scarcely  be  said  to  have 
assumed  a  scientific  form  until  our  day. 

In  truth,  the  common  law  is  not  in  its  nature  and  character  an 
absolutely  fixed,  inflexible  system,  like  the  statute  law,  providing 
only  for  cases  of  a  determinate  form  which  fall  within  the  letter 
of  the  language  in  which  a  particular  doctrine  or  legal  proposition 
is  expressed.  It  is  rather  a  system  of  elementary  principles  and  of 
general  juridical  truths,  which  are  continually  expanding  wath  the 
progress  of  society,  and  adapting  theselves  to  the  gradual  changes 
of  trade  and  commerce  and  the  mechanical  arts,  and  the  exigencies 
and  usages  of  the  country.  There  are  certain  fundamental  maxims 
in  it  which  are  never  departed  from;  there  are  others  again,  w^hich, 
though  true  in  a  general  sense,  are  at  the  same  time  susceptible  of 
modifications  and  exceptions,  to  prevent  them  fi'om  doing  mani- 
fest wrong  and  injury. 

When  a  case,  not  affected  by  any  statute,  arises  in  any  of  our 
courts  of  justice,  and  the  facts  are  established,  the  first  question 
is,  whether  there  is  any  clear  and  unequivocal  principle  of  the 
common  law  which  directly  and  immediately  governs  it,  and  fixes 
the  rights  of  the  parties.  If  there  be  no  such  principle,  the  next 
question  is,  whether  there  is  any  principle  of  the  common  law  which, 
by  analogy,  or  parity  of  reasoning,  ought  to  govern  it.  If  neither  of 
these  sources  furnishes  a  positive  solution  of  the  contro\ersy,  re- 
sort is  next  had  (as  in  a  case  confessedly  new)  to  the  principles  of 
natural  justice,  which  constitute  the  basis  of  much  of  the  common 
law;  and  if  these  principles  can  be  ascertained  to  apply  in  a  full 
and  determinate  manner  to  all  the  circumstances,  they  are  adopted, 


THE  CUSTOM  OF  THE  REALM  93 

and  decide  the  rights  of  the  parties.  If  all  these  sources  fail,  the 
case  is  treated  as  remediless  at  the  common  law ;  and  the  only 
relief  which  remains  is  by  some  new  legislation,  by  statute,  to 
operate  upon  future  cases  of  the  like  nature. 

These  remarks  may  be  illustrated  by  referring  to  some  of  the 
most  familiar  cases,  which  occur  in  the  every  day  business  of  life. 
In  the  common  case  of  work  and  labor  done  for  any  person,  or 
goods  sold  and  delivered  to  him,  the  common  law  implies  an 
obligation  or  duty  in  the  person  for  whose  benefit  and  at  whose 
request  it  is  done,  to  pay  the  amount  of  the  price  of  the  goods,  or 
the  ^•alue  of  the  work  and  labor.  Now,  there  is  no  statute  from 
which  this  obligation  or  duty  is  derived.  It  is  simply  a  dictate  of 
natural  justice,  and  from  that  source  was  adopted  into  the  common 
law.  The  mode  by  which  this  obligation  or  duty  was  enforced  in 
the  ancient  common  law,  was  by  the  remedy  called  an  action  of 
debt.  But  this  remedy  was  in  some  respects,  and  under  some 
circumstances,  liable  to  embarrassments  and  technical  objections. 
About  three  hundred  years  ago,  it  occured  to  some  acute  lawyers, 
that  another  remedy,  which  would  avoid  these  embarrassments 
and  objections,  might  be  applied.  Accordingly,  an  action  of 
trespass  on  the  case,  now  well  known  by  the  name  of  an  action  of 
indehilahts  assumpsit,  was  brought  in  the  courts  of  Westminster 
Hall,  to  recoAcr  the  amount  of  the  debt.  It  was  then  very  gravely 
debated,  whether  such  an  action  would  lie,  and  finally  (after  great 
diversity  of  opinion)  it  was  settled  in  favor  of  the  action.  The 
principal  ground  of  the  decision  was  from  the  analogy  to  other  well- 
known  forms  of  actions  on  the  case,  and  the  undertaking  or  promise 
of  the  debtor,  implied  by  law,  to  pay  the  debt,  the  breach  of  which 
undertaking  or  promise  was  a  wrong  to  the  other  party,  for  which 
he  was  entitled  to  recover,  not  technically  the  debt,  but  damages 
to  the  full  amount  of  the  debt.  And  this  is  now  the  common  mode, 
by  which  debts  of  this  sort  are  usually  sued  for  and  recovered. 

Again :  Wlien  a  man  borrows  money  of  another  to  be  repaid  to 
the  lender,  the  common  law,  upon  principles  of  natural  justice, 
holds  him  liable  to  repay  it,  upon  his  express  or  implied  agreement 
to  that  effect.  But  cases  occurred,  in  which  money  in  the  hands 
of  one  person,  in  justice  and  equity,  belonged  to  another;  but  it 
had  not  been  borrowed,  nor  heid  the  possessor  promised  to  pay  it  over. 
On  the  contrary,  he  resisted  the  claim.  The  question  then  arose, 
whether  in  such  a  case  the  money  was  recoverable.  And  the 
courts  of    law,  at   a  comparatively    recent    period,  held,   that  an 


94  HISTORY  OF  THE  COMMON  LAW 

action  would  lie  for  the  recovery  of  it,  and  that  the  proper  action 
was  indebitatus  assumpsit,  for  money  had  and  rcceixed  to  the  use  of 
the  party  entitled.  Here,  again,  the  courts  acted  ujion  jjrinciples 
of  natural  justice,  and  founded  themseKes,  both  as  to  the  right 
and  the  remedy  to  recover,  upon  the  analogies  of  the  law.  They 
first  inferred,  from  the  principles  of  natural  justice  and  the  analo- 
gies of  the  law,  an  implied  undertaking  or  ])romise  to  pay  o\er  the 
money,  because  in  conscience  and  duty  the  holder  was  bound  so  to 
do;  and  next,  they  applied  the  remedy  by  analogy  to  other  cases 
where  there  was  an  express  promise  of  a  similar  nature. 

Again :  Until  the  reign  of  Queen  Anne,  promissory  notes,  although 
payable  to  bearer  or  order,  were  held  not  to  be  negotiable;  so  that 
no  person  but  the  payee  could  maintain  an  action  for  the  money 
due  on  the  same.  The  ground  of  this  decision  was,  that  debts, 
technically  called  choses  in  action,  are  not  assignable  at  the  common 
law,  a  doctrine  which  can  be  traced  back  to  its  early  rudiments. 
This  therefore,  was  a  case,  where,  though  the  principles  of  natural 
justice  might  apply  to  create  an  obligation,  the  positive  rules  of 
the  common  law  forbade  it.  Hence  the  interposition  of  the  Legis- 
lature became  indispensable.  Na3%  even  the  payee  himself  could 
not,  according  to  the  rules  of  the  common  law,  maintain  an  action 
directly  on  the  instrument;  but  he  could  only  use  it  as  e\'idence 
of  a  debt,  in  an  action  properly  framed,  upon  the  consideration  for 
which  it  was  given.  When  the  Statute  of  the  3d  and  4th  Anne, 
chapter  9,  made  such  promissory  notes  negotiable,  it  was  found 
to  be  so  convenient,  that  it  was  generally,  though  not  uni\ersally 
nor  without  some  exceptions  and  modifications,  introduced  either 
by  statute  or  usage  into  the  Colonies.  In  Massachusetts  it  was 
adopted  by  usage,  and  acted  upon  down  to  our  day,  without  any 
other  sanction  than  judicial  recognition. 

As  soon  as  the  negotiability  of  promissory  notes  was  thus 
established,  it  gave  rise  to  innumerable  questions,  as  to  the  rights 
and  responsibilities  of  the  parties,  which  were  either  confessedly 
new,  or  but  faintly  indicated  by  antecedent  principles.  What 
were  the  nature  and  extent  of  the  obligation  of  an  indorser;  what 
were  the  duties  of  the  indorsee;  when  demand  weis  to  be  made 
of  payment  of  the  maker;  what  notice  was  to  be  given,  and  how 
notice  was  to  be  given,  by  the  holder  to  the  indorser;  —  these,  and 
very  many  questions  of  a  like  nature,  were  necessarily  to  be  resolved. 
And  so  complicated  and  so  various  are  the  circumstances  which  may 
attend  cases  of  this  nature,  that  notwithstanding  the  long  course 


THE  CUSTOM  OF  THE  REALM  95 

of  decisions,  which  have  in  a  great  measure  ascertained  and  qualified 
the  rights  and  responsibiUties  of  the  parties,  there  yet  remains  a 
wide  field  for  future  discussions,  growing  out  of  the  new  and  ever 
varying  courses  of  business.  The  principles  of  natural  justice 
have  furnished  many  rules  for  the  exposition  of  the  contract  and 
obligations  of  the  parties;  the  analogies  of  the  common  law  have 
furnished  others;  the  usages  of  the  mercantile  world  have  fur- 
nished others;  and,  then  again,  there  have  been  anomalies,  which 
could  not  be  brought  within  the  range  of  any  well  defined  princi- 
ples, and  therefore  have  been  left  to  be  regulated  by  legislative 
enactments.  In  this  branch  of  the  law,  in  an  especial  manner  wnll 
be  found  a  striking  illustration  of  the  remark  of  an  eminent  judge, 
that  the  common  law  is  a  system  of  principles,  which  expands  with 
the  exigencies  of  society,     (pp.  29-33.) 

Markby,  Elements  of  Law,  sec.  90,  91,  92. 

90.  The  resource  of  the  English  lawyers  when  called  on  to  fill 
the  gap  which  was  elsewhere  supplied  by  the  Roman  Law  was  cus- 
tom. Of  this  custom  the  judges  were  themselves,  in  the  last  resort, 
the  repository.  But  the  judges  usually  observed  a  discreet  silence 
as  to  the  source  from  which  they  derived  the  rules  upon  which 
their  decisions  were  based.  Here  and  there  a  judge  or  a  counsel 
arguendo  would  mention  a  precedent,  but  if  we  may  trust  the 
reports  contained  in  the  Year  Books,  even  this  was  rare.  Still 
there  appears  to  have  been  very  little  tendency  to  innovation ;  and 
there  was  doubtless  a  tradition  of  the  courts  to  which  every  judge 
knew  that  he  must  conform  at  the  peril  of  his  reputation.  Some 
record  of  the  proceedings  of  the  Superior  courts  of  justice  was 
always  kept,  and  we  have  a  series  of  such  records  commencing  as 
early  as  the  6  Ric.  H  (1394).  These  early  records  might,  and 
probably  did,  afford  some  guide  in  future  cases,  though  they  were 
not  drawn  up  with  that  object.  Moreover,  at  least  as  early  as  the 
reign  of  Edward  I  the  practice  was  begun  of  drawing  up  in  addi- 
tion to  these  records,  reports  of  cases  heard  and  determined,  the 
main  and  apparently  the  sole  object  of  which  was  to  furnish  judges 
with  precedents  to  guide  them  in  their  future  decisions.  In  these 
Year  Books  there  is  very  little  argument,  but  only  an  ascertainment 
by  oral  discussion  of  the  points  at  issue  with  the  decision  of  the 
court.  The  reporter  however  frequently  criticises  the  decision,  and 
sometimes  indicates  in  a  note  the  general  proposition  of  law  which 
he  supposes  the  decision  to  support.     Reference  is  also  sometimes 


96  HISTORY  OF  THE  COMMON  LAW 

made  by  the  reporter  to  other  cases  involving  the  same  point. 
The  later  Year  Books  give  the  arguments  somewhat  more  fully, 
but  still  we  do  not  find  previous  cases  frequently  cited.  From  this 
we  might  be  disposed  to  infer  that  the  practice  of  citing  cases  in 
support  of  an  argument  or  a  judgment  was  still  very  rare  e\-en 
in  the  reign  of  Henry  the  Eighth,  when  the  last  Year  Book  was 
published.  Yet  this  can  hardly  be  so,  for  the  reports  of  Plowden  in 
the  reign  of  Edward  VI,  which  are  much  fuller  than  the  latest  Year 
Books,  show  that  cases  were  at  that  time  freely  cited,  and  it  is  not 
likely  that  the  practice  came  suddenly  into  existence.  Moreover, 
we  can  scarcely  account  for  the  existence  of  the  Year  Books  at  all, 
unless  we  suppose  that  the  lawyers  studied  them  and  made  some 
use  of  them.  The  importance  attached  to  the  Year  Books  is  fur- 
ther shown  by  the  numerous  reprints  of  them  which  were  issued 
as  soon  as  the  art  of  printing  was  discovered,  and  also  by  the  pop- 
ularity of  the  abridgments  made  of  them  by  Fitzherbert  and  Brooke. 
Probably,  therefore,  the  influence  of  precedent  upon  the  decisions 
of  the  judges  is  not  to  be  measured  by  the  number  of  cases  quoted 
in  the  Year  Books. 

91.  It  is,  however,  always  as  indicating  the  custom  of  England, 
and  not  as  authority,  that  the  decisions  of  earlier  judges  were  cited 
during  all  this  period ,  and  even  afterwards.  In  the  patent  of  James  I 
for  the  appointment  of  official  reporters  it  is  indeed  recited  that 
the  common  law  of  England  is  principally  declared  by  the  grave 
resolutions  and  arrests  of  the  reverend  and  learned  judges  upon 
the  cases  that  come  before  them  from  time  to  time,  and  that  the 
doubts  and  questions  likewise  which  arise  upon  the  exposition  of 
statute  laws  are  by  the  same  means  cleared  and  ruled.  Neverthe- 
less we  find  Blackstone  still  saying  that  the  first  ground  and  chief 
corner-stone  of  the  laws  of  England  is  general  and  immemorial 
custom.  But  long  before  Blackstonc's  time,  and  in  some  measure 
perhaps  owing  to  the  patent  of  James  I,  a  very  important  change 
had  taken  place  in  the  view  held  by  judges  as  to  the  force  of  prior 
decisions.  These  decisions  were  at  first  evidence  only  of  what  the 
practice  had  been,  guiding,  but  not  compelling,  those  who  con- 
sulted them  to  a  conclusion.  But  when  Blackstone  wrote,  each 
single  decision  standing  by  itself  had  already  become  an  authority 
which  no  succeeding  judge  was  at  liberty  to  disregard.  This  im- 
portant change  was  very  gradual,  and  the  practice  was  very  likely 
not  altogether  uniform.  As  the  judges  became  conscious  of  it,  they 
became  much  inore  careful  of  their  expression,  and  gave  much  more 


PRECEDENTS  AND  CASE  LAW  97 

elaborate  explanation  of  their  reasons.  Tliey  also  betrayed  greater 
diffidence  in  dealing  with  new  cases  to  which  no  rule  was  applicable, 
cases  of  first  impression  as  they  were  called;  and  they  introduced 
the  curious  practice  of  occasionally  appending  to  a  decision  an 
expression  of  desire  that  it  was  not  to  be  drawn  into  a  precedent. 

92.  Thus  it  comes  to  pass  that  English  case  law  does  for  us  what 
the  Roman  law  does  for  the  rest  of  Western  Europe.  And  this 
diiiference  between  our  common  law  and  the  common  law  of  con- 
tinental Europe  has  produced  a  marked  difference  between  our  own 
and  foreign  legal  systems.  Where  the  principles  of  the  Roman  law 
are  adopted  the  advance  must  always  be  made  on  certain  lines.  An 
English  or  American  judge  can  go  wherever  his  good  sense  leads 
him.  The  result  has  been,  that  whilst  the  law  of  continental  Europe 
is  formally  correct  it  is  not  always  easily  adapted  to  the  changing 
wants  of  those  amongst  whom  it  is  administered.  On  the  other 
hand,  the  English  law,  whilst  it  is  cumbrous,  ill-arranged,  and  bar- 
ren of  principles,  whilst  it  is  obscure  and  not  unfrequently  in  con- 
flict with  itself,  is  yet  a  system  under  which  justice  can  be  done. 
Anyhow  it  stands  alone  in  the  history  of  the  world.  The  records 
■of  decisions  have  no  doubt  at  all  times  and  in  all  countries  served 
as  evidence  of  custom,  just  as  the  Year  Books  formerly  served, 
and  the  court  rolls  of  manors  still  serve,  amongst  ourselves.  And 
even  without  the  influence  of  custom,  judges  are  never  likely  to  dis- 
regard or  to  remain  uninfluenced  by  the  decisions  of  their  prede- 
cessors. But  nowhere  else  than  in  England  and  in  countries  which 
have  derived  their  legal  systems  from  England  have  the  decisions 
of  judges  been  systematically  treated  as  authoritative. 

(/)   Precedents  and  Case  Law  ^ 

Holland,  Jurisprudence,  chap.  V. 

In  the  weight  which  they  attach  to  the  decision  of  a  court,  legal 
systems  differ  very  widely.  While  in  England  and  in  the  United 
States  a  reported  case  may  be  cited  with  almost  as  much  confidence 
as  an  Act  of  Parliament,  on  the  Continent  a  judgment,  though  use- 
ful as  showing  the  view  of  the  law  held  by  a  qualified  body  of  men, 
seems  powerless  to  constrain  another  court  to  take  the  same  view 
in  a  similar  case. 

The  continental  view  is  an  inheritance  from  the  law  of  Rome; 
for  although  Cicero  enumerates  'res  iudicatce'  among  the  sources 

^  See  Pollock,  Essays  in  Jurisprudence  and  Ethics,  237-261. 


98  HISTORY  OF  THE  COMMON  LAW 

of  law,  and  the  Emperor  Severusgave  binding  force  to  the  'aiictor- 
ilas  rerum  perpetuo  similiter  iudicatarum  '  the  ordinary  principle 
was  finally  established  by  a  Constitution  of  Justin.  The  Codes  of 
Prussia  and  Austria  expressly  provide  that  judgments  shall  not 
have  the  force  of  law,  and  although  the  Codes  of  France,  Italy,  and 
Belgium  are  silent  on  the  point,  the  rule  in  all  these  countries  is 
substantially  the  same,  viz.,  that  previous  decisions  are  instructive 
but  not  authoritative;  subject  to  certain  special  provisions  of  a 
strictly  limited  scope. 

In  England  cases  have  been  cited  in  court  at  least  as  early  as  the 
time  of  Henry  I.  They  are,  however,  stated  by  Lord  Hale  to  be 
'less  than  law,'  though  'greater  evidence  thereof  than  the  opinion 
of  any  private  persons,  as  such,  whatsoever';  and  his  contempo- 
rary, Arthur  Duck,  remarks  that  the  Common  Law  judges,  in  case 
of  difficulty  ^non  recurritnt  ad  ins  civile  Romanorum,  ut  apud  alias 
gentes  Europeas,  sed  suo  arhitrio  et  conscientiae  relinqiiuntur.'  But 
in  Blackstone's  time  the  view  was  established  that  'the  duty  of  the 
judge  is  to  abide  by  former  precedents,'  and  it  has  long  been  well 
understood  that  our  courts  are  arranged  in  this  respect  in  a  regular 
hierarchy,  those  of  each  grade  being  bound  by  the  decisions  of  those 
of  the  same  or  higher  grade,  while  the  House  of  Lords  is  bound  by 
its  decisions. 

There  have  been  of  late  some  symptoms  of  an  approximation 
between  the  two  theories.  While  on  the  continent  judicial  decisions 
are  reported  with  more  care,  and  listened  to  with  more  respect  than 
formerly,  indications  are  not  wanting  that  in  England  and  the 
United  States  they  are  beginning  to  be  somewhat  more  freely  criti- 
cised than  has  hitherto  been  usual. 

Bracton,  Bk.  I,  chap.  2,  §  3  (Before  1259).    Twiss'  translation. 

Since,  however,  laws  and  customs  of  this  kind  are  often  abusively 
perverted  by  the  foolish  and  unlearned  (who  ascend  the  judg- 
ment-seat before  they  have  learnt  the  laws),  and  those  who  are 
involved  in  doubts  and  in  (vague)  opinions,  are  very  frequently 
led  astray  by  their  elders,  who  decide  causes  rather  according  to 
their  own  pleasure  than  by  the  authority  of  the  laws,  I,  Henricus 
de  Bracton,  have,  for  the  instruction,  at  least  of  the  younger  gen- 
eration, undertaken  the  task  of  diligently  examining  the  ancient 
judgments  of  righteous  men,  not  without  much  loss  of  sleep  and 
labour,  and  by  reducing  their  acts,  counsels,  and  answers,  and  what- 
ever thereof  I  have  found  noteworthy,  into  one  summary,  I  have 


PRECEDENTS  AND  CASE  LAW  99 

brought  it  into  order  under  titles  and  paragraphs  (without  pre- 
judice against  any  better  system),  to  be  commended  to  perpetual 
memory  by  the  aid  of  writing;  requesting  the  reader,  if  he  should 
find  anything  superfluous  or  erroneously  stated  in  this  work,  to 
correct  and  amend  it,  or  to  pass  it  over  with  eyes  half  closed,  since 
to  retain  everything  in  memory,  and  to  make  no  mistakes,  is  an 
attribute  of  God  rather  than  of  man. 

Bracton,  Bk.  Ill,  tr.  2,  chap.  12,  §  12.    Twiss'  translation. 

But  if  there  be  any  one  who  at  the  fourth  county  court  wishes 
to  give  bail  for  any  one  accused  of  the  principal  act,  as  has  been 
said  in  part,  he  shall  not  be  heard,  according  to  what  Martin  (de 
Pateshull)  answered  to  Richard  Duket  concerning  a  certain  escheat 
in  the  county  of  Kent.  For  which  also  makes  what  you  have  else- 
where, in  the  iter  of  Martin  de  Pateshull  in  the  county  of  Worces- 
ter in  the  fifth  year  of  the  reign  of  King  Henry.  For  it  is  there 
said  that  in  the  fourth  county  court  no  essoin  is  admitted  of  any 
one  who  is  accused,  nor  ought  any  one  to  be  heard  who  is  desirous 
to  give  bail  for  such  an  one  to  produce  him  at  another  county 
court,  unless  this  should  be  under  a  precept  of  the  lord  the  king, 
which  would  rather  be  an  act  of  his  pleasure,  than  of  his  justice. 

From  the  Prior  of  Lewes  v.  the  Bishop  of  Ely,  Common 
Pleas,  1304  Y.  B.  32  Edw.  L,  Horwood  ed.  p.  32. 
Herle  (of  counsel  for  plaintiff,  arguendo) :  But  consider  whether 
he  shall  be  admitted  to  aver  these  three  causes:  for  the  judgment 
to  be  by  you  now  given  will  hereafter  be  an  authority  in  every 
quare  non  admisit  in  England;  therefore  consider  if  he  shall  be 
received  to  aver  these  three  causes. 

Anonymous  Case,  Common  Pleas,  1341.  Y.  B.  Pasch.  15  Edw. 
III.,  No.  56. 
Dower.  Thorpe  (counsel  for  defendant,  pleading) :  She  was 
not  when  her  husband  died  of  such  age  as  she  could  merit  dower. 
Hillary  (J.):  State  with  certainty  of  what  age  she  was.  Thorpe: 
Not  nine  years  old.  Gayneford  (counsel  for  plaintiff) :  She  was 
nine  years  old  and  more.  Ready,  etc.  Thorpe:  Show  her  age  to 
have  been  such  that  she  would  have  been  dowable  thereat,  viz.  ten 
years  at  least.  Hillary  (J.):  In  the  case  of  John  Benstede  the  widow 
was  endowed  at  the  age  of  nine  years  and  a  half.  (Pike's  trans- 
lation.) 


100  HISTORY  OF  THE  COMMON  LAW 

Anonymous  Case,  Common  Pleas,  1462.    Y.  B.  2  E.  I\',  27. 

In  debt  on  a  bond  against  A.  R.,  late  of  P.,  the  defendant  says 
that  at  the  time  the  writ,  etc.,  he  was  conversant  at  M.  without  this 
that  he  ever  lived  at  P.  in  the  manner,  etc.  Littleton  (counsel  for 
defendant):  To  this  you  shall  not  be  received  against  the  bond. 
Billing  (counsel  for  plaintiff) :  That  is  not  an  estoppel,  for  this 
was  adjudged,  M.  34  H.  6  fol.  19  [i.e.,  Michaelmas  Term  in  the 
34th  year  of  Henry  VI],  here  in  the  case  of  one  J.  Weeks,  late  of 
Bristow.  Needham  and  Danvers  alone  were  on  the  Bench.  Need- 
ham  (J.)  said  that  this  is  no  estoppel,  for  it  is  with  the  bond,  for 
it  may  be  that  F.  is  a  place  called  P.  in  a  town,  and  no  farm  or 
hamlet  or  place  known  outside  of  the  town  or  hamlet,  or  that  his 
name  is  R.  M.  of  P.  which  P.  is  his  own  house  in  the  town.  .  .  . 
Danvers  (J.)  agreed  .  .  .  Littleton:  I  understand  not,  Sir, 
this  was  decided  before  you  here  in  your  time.  M.  37  H.  6  fol.  5. 
Needham  (J.):  No,  Sir,  I  believe  not  unless  the  bond  makes 
mention  of  a  town  by  express  words,  that  is  to  say  of  the 
town  of  P. 

Anonymous  Case,  Common  Pleas,  1537  (1  Dyer,  14a). 

Willoughby  asked  of  the  Court,  If  lessee  for  years  covenant  for 
himself  by  the  indenture  of  lease,  that  within  the  three  first  years  he 
will  build  a  new  house  and  after  the  term  finished,  he  die  the 
covenant  not  performed,  and  the  lessor  for  that  breach  bring  a 
writ  of  covenant  against  his  executors.  Whether  this  lies,  or  not? 
that  was  the  matter.  And  Shelley  (J.)  and  Pitzherbert  (J.) 
thought  that  it  would.  But  it  is  otherwise  of  heirs,  for  the  heir 
shall  not  be  charged  without  naming  him,  but  the  executor  shall. 
And  so  is  47  E.  3,  23.  But  Baldwin  (C.J.)  said  secretly.  That  there 
is  a  diversity  between  an  obligation  in  which  no  mention  is  of  the 
executor,  for  that  it  is  a  duty;  but  covenant  is  executory,  and 
sounds  only  in  damages,  and  a  tort,  which  (as  it  seems)  dies  with 
the  person,  etc. 

Note,  2   Dyer  Ulb  in  niarg.   (1622). 

Noy,  of  Lincoln's  Inn,  Mich.  19.  Jac.  at  Moot  in  the  Hall  put 
this  difference,  that  if  a  man  make  a  feoffment  in  fee  to  the  use  of 
himself  for  life,  the  fee-simple  remains  in  the  feoffees,  for  otherwise 
he  will  not  have  an  estate  for  life  according  to  his  intention;  but 
if  the  use  be  limited  to  himself  in  tail,  it  is  otherwise,  for  both 
estates  may  be  in  him. 


PRECEDENTS  AND  CASE  LAW  101 

Bole  v.  Horton,  Common  Pleas,  1G70.  (Vaughan,  360,  382.) 
Extract  from  the  ojiinion  of  Vaughan,  C.  J. 
An  extra-judicial  opinion,  given  in  or  out  of  a  court,  is  no  more 
than  the  prolatum  or  saying  of  him  who  gives  it,  nor  can  be  taken 
for  his  opinion,  unless  everything  spoken  at  pleasure  must  pass  as 
the  speaker's  opinion.  An  opinion  given  in  Court,  if  not  necessary 
to  the  judgment  given  of  record,  but  that  it  might  have  been  as 
well  gi\en  if  no  such,  or  a  contrary,  opinion  had  been  broached,  is 
no  Judicial  opinion,  nor  more  than  a  gratis  dictum.  But  an  opin- 
ion, though  erroneous,  concluding  to  the  Judgment,  is  a  Judicial 
Opinion,  because  delivered  under  the  sanction  of  the  Judge's  Oath, 
upon  deliberation,  which  assures  it  is  or  was  when  delivered  the 
Opinion  of  the  deliverer.  Yet,  if  a  court  gives  judgment  judicially, 
another  court  is  not  bound  to  give  like  judgment,  unless  it  think 
that  judgment  first  given  was  according  to  law.  For  any  court 
may  err,  else  errors  in  judgment  would  not  be  admitted  nor  a  re- 
versal of  them.  Therefore  if  a  Judge  conceives  a  Judgment  given 
in  another  court  to  be  erroneous,  he  being  sworn  to  judge  accord- 
ing to  Law,  that  is  in  his  own  conscience,  ought  not  to  give  the  like 
judgment,  for  that  were  to  wrong  every  man  having  a  like  cause 
because  another  was  wronged  before,  much  less  to  follow  extra- 
judicial Opinions  unless  he  believes  those  Opinions  are  right. 

Blackstone,  Commentaries,  I,  69  (1765). 

It  is  an  established  rule  to  abide  by  former  precedents  where  the 
same  points  come  again  in  litigation;  as  well  to  keep  the  scale  of 
justice  even  and  steady,  and  not  liable  to  waver  with  every  new 
judge's  opinion,  as  also  because,  the  law  in  that  case  being  sol- 
emnly declared  and  determined,  what  before  was  uncertain  and 
perhaps  indifferent  is  now  become  a  permanent  rule,  which  it  is 
not  in  the  breast  of  any  subsequent  judge  to  alter  or  vary  from, 
according  to  his  private  sentiments;  he  being  sworn  to  determine, 
not  according  to  his  private  judgment,  but  according  to  the  known 
laws  and  customs  of  the  land;  not  delegated  to  pronounce  a  new 
law,  but  to  maintain  and  expound  the  old  one. 

Mirehouse  v.  Rennell,  House  of  Lords,  1833.  (1  CI.  &  F.  527.) 
Extract  from  the  opinion  of  Parke,  B.:  Our  Common  Law  sys- 
tem consists  in  the  applying  to  new  combinations  of  circumstances 
those  rules  of  law  which  we  derive  from  legal  principles  and 
judicial  precedents;  and  for  the  sake  of  attaining  uniformity,  consist- 
ency and  certainty,  we  must  apply  those  rules,  where  they  are  not 


102  HISTORY  OF  THE  COMMON  LAW 

plainly  unreasonable  and  inconvenient,  to  all  cases  which  arise; 
and  we  are  not  at  liberty  to  reject  them,  and  to  abandon  all  analogy 
to  them,  in  those  to  which  they  have  not  yet  been  judicially  applied, 
because  we  think  that  the  rules  are  not  as  convenient  and  reason- 
able as  we  ourselves  could  have  decided.  It  appears  to  me  to  be 
of  great  importance  to  keep  this  principle  of  decision  steadily  in 
view,  not  merely  for  the  determination  of  the  particular  case,  but 
for  the  interests  of  Law  as  a  science. 

Dillon,  Laws  and  Jurisprudence  of  England  and  America, 
23L 
The  point  I  wish  you  to  notice  is  that  the  authoritative  force  of 
judicial  precedents  is  an  established,  and  up  to  the  present  time  at 
least,  an  essential  part  of  the  English  and  American  systems  of  law. 
Let  us  trace  more  at  large  the  scope  and  effect  of  this  important 
doctrine.  What  is  judicial  precedent?  Judicial  precedent  is  not 
simply  part  of  the  law  in  a  general  sense,  —  that  it  is  natural  to 
yield  to  the  influence  of  example  and  to  follow  what  has  been  prac- 
tised, —  but  it  is  a  part  of  our  law  in  a  sense  and  with  effects  which 
are  distinctively  and  most  strikingly  peculiar.  The  doctrine  as 
established  is  shortly  this:  that  a  decision  by  a  court  of  competent 
jurisdiction  of  a  point  of  law  lying  so  squarely  in  the  pathway  of 
judicial  judgment  that  the  case  could  not  be  adjudged  without 
decision,  is  not  only  binding  upon  the  parties  to  the  cause  or  judg- 
ment, but  the  point  so  decided  becomes,  until  it  is  reversed  or  o\er- 
ruled,  evidence  of  what  the  law  is  in  like  cases,  which  the  courts 
are  bound  to  follow  not  only  in  cases  precisely  like  the  one  which  was 
first  determined,  but  also  in  those  which  however  different  in  their 
origin  or  special  circumstances  stand,  or  are  considered  to  stand, 
upon  the  same  i)rinciple.  What  is  to  be  observed  and  remembered 
is  that  the  adjudged  case  has  an  authoritative  and  not  merely  per- 
suasive force.  The  doctrine  is  not  limited  in  its  scope  and  binding 
effect  to  cases  which  determine  the  true  construction  of  a  statute, 
but  extends  to  the  far  larger  class  of  cases  which  does  not  depend 
upon  positive  legislation,  but  must  be  determined  by  general  reason- 
ing. There  is  a  difference  of  opinion  among  writers  as  to  whether 
the  precedent  actually  constitutes  the  law  or  is  only  authoritative 
evidence  thereof.  It  is  not  proposed  now  to  enter  upon  this  discus- 
sion; it  is  enough  to  remark  at  this  time  that  the  precedent  has  in 
our  legal  "system  an  authoritatixe  effect.  In  continental  Europe  a 
judicial   decision   has  no   authoritative   force   in   any   other   case, 


THE  JURY  10.3 

whether  in  the  same  or  any  other  court.  But  in  England  and  in 
this  country  a  point  solemnly  decided  has  the  force  and  effect  of 
law,  binding  the  judges  in  all  other  cases  that  clearly  fall  within 
its  principle,  and  which  the  judges  are  therefore  bound  to  follow 
and  apply,  unless,  to  use  Blackstone's  well-known  and  much  criti- 
cized qualification,  the  precedent  is  "flatly  absurd  or  unjust." 

To  this  doctrine  we  owe  a  weight  of  obligation  which  can  not 
easily  be  overstated.  By  reason  of  the  consequent  importance,  they 
have  been  reported  for  several  hundred  years,  so  that  at  this  time 
the  volumes  of  reports  in  England  and  this  country  number  about 
eight  thousand.  These  embody  the  learning,  wisdom,  and  expe- 
rience of  the  judges  (often  men  of  great  intellectual  powers)  who 
during  this  long  period  have  made  the  law  and  the  practical  ad- 
ministration of  justice  the  subjects  of  profound  study.  Indirectly 
the  reports  embody  also  the  results  of  the  researches,  studies,  expe- 
rience and  ability  of  the  bar  during  the  same  period,  since  of  these 
judges  have  had  the  advantage  in  the  argument  of  the  causes  so 
decided.  Indeed,  the  doctrine  of  judicial  precedent  implies  that 
the  point  to  the  decision  whereof  such  force  is  attributed  should 
have  been  argued  by  opposing  counsel. 

The  value  of  these  reports  to  the  lawyer  and  to  the  judge  is,  I 
repeat,  absolutely  incalculable.  It  is  a  mine  of  wealth  possessed 
by  none  but  English-speaking  peoples.  Here  the  lawyer  finds  his 
true  riches.  What  the  art  collections  in  the  Vatican,  in  the  Tribune 
Room,  the  Pinacotheka,  in  the  Dresden  Gallery,  and  in  the  Louvre 
are  to  the  artist,  the  judicial  reports  are  to  the  English  and  Ameri- 
can lawyer.  I  yield  to  no  one  in  my  estimate  of  the  store  of  riches 
they  contain.  I  have  not  yet  mentioned  one  of  the  chief  elements 
of  their  possible  usefulness.  They  are  capable  of  being  made  quite 
as  valuable  to  the  legislator  as  to  the  lawyer,  since  the  uninterrupted 
light  of  the  experience  of  many  generations  of  men  shines  forth 
from  them  to  mark  out  and  illumine  the  legislator's  pathway.  He 
need  scarcely  take  a  single  step  in  the  dark. 

(g)     The  Jury  ^ 
i.     Archaic  modes  of  trial. 

BiGELOw,  History  of  Procedure  in  England,  chap.  IX. 

The  next  step  in  the  procedure  was  the  appearance  of  the  parties 
before  the  judges  at  the  trial  term.     The  medial  judgment,  as  we 

^  Thayer,  Preliminary  Treatise  on  Evidence,  Chaps.  I-IV. 


104  HISTORY  OF  THE  COMMON  LAW 

have  seen,  must  have  directed  a  trial  in  one  of  the  following  modes 
to  wit,  by  compurgation,  by  witnesses,  by  charters,  by  record,  by 
the  ordeal,  by  the  duel,  or  by  the  inquisition  or  recognition.  Each 
of  these  will  now  be  considered  in  order,  from  the  final  point  of  view, 
the  trial. 

First,  then,  the  compurgation.  This,  in  its  essential  features,  con- 
sisted in  bringing  forward  of  a  specified  number  of  persons,  by  the 
party  adjudged  to  give  the  proof  to  make  oath  in  his  favor:  the 
number  varying  in  ordinary  cases  from  one  to  forty-eight,  being 
dependent  upon  the  rank  of  the  parties,  of  the  compurgators  (one 
thegn,  for  example,  being  equal  to  six  villeins),  the  value  of  the 
property,  if  property  were  involved,  and  the  nature  of  the  suit. 
These  persons  were  to  swear  not  to  facts  but  to  the  credibility  of 
the  party  for  whom  they  appeared ;  though  knowledge  of  the  facts 
was  probably  deemed  an  important  consideration  in  the  making  of 
the  selection. 

Trial  by  witnesses  to  the  fact  was  very  common  both  in  the  pre- 
Norman  and  in  the  Norman  periods.  Unlike  compurgators  who 
swore  to  their  principal's  credibility,  witnesses  to  the  fact  swore  to 
matters  de  visu  et  aiiditu.  They  differed,  however,  essentially  from 
the  inquisitors  and  recognitors  of  the  time,  and  from  modern  wit- 
nesses. They  gave  their  testimony  in  ordinary  cases  in  accordance 
with  the  narrow  formula  of  the  medial  judgment;  they  were  not  ex- 
amined as  to  facts;  and  they  appeared  (in  this  particular  like  mod- 
ern witnesses)  at  the  instance  of  the  party  for  whom  they  testified. 
The  judge  might  examine  them  as  to  their  competency,  but  if  this 
were  established,  if  they  were  sworn  to  be  legal  men  of  the  neigh- 
borhood, they  were  entitled  to  give  an  answer  according  to  the  pre- 
scribed formula.  They  were  triers,  not  witnesses  in  the  modern 
sense,  and  few  of  the  questions  which  arise  at  the  present  day 
upon  the  testimony  of  witnesses,  such  as  the  admissibility  of 
evidence,  could  arise  under  the  procedure  of  the  Norman  (pre- 
Norman)  period.  Both  civil  and  criminal  cases  were  tried  in 
this  way.  Civil  cases  may  be  found  in  the  records  almost  without 
number. 

Of  trial  by  charters,  little  need  be  said.  The  effect  and  inter- 
pretation of  documents  were  ordinarily  matter  for  the  judges;  and 
trial  by  charters  had,  in  consequence,  more  of  the  features  of  trials 
of  the  present  day  than  any  other  form  of  litigation  except  that  by 
inquisition  and  recognition.  The  event  was  not,  as  it  was  in  trial 
by  wager  of  law  and  by  party-witness,  largely  and  often  wholly  in 


THE  JURY  105 

the  hands  of  the  party  who  had  dehvered  the  last  good  pleading. 
Nor  was  it  necessarily  left  to  some  external  test,  incapable  in  fact 
of  discovering  the  truth.  But  as  in  the  case  of  trial  by  inquisition, 
the  truth  w^as,  if  possible,  sought  by  a  rational  and  satisfactory 
mode  of  inquiry,  as  by  a  comparison  of  the  seal  in  question  with 
other  seals  of  the  same  party,  admitted  to  be  genuine. 

The  next  mode  of  trial  to  be  noticed  was  the  ordeal,  commonly 
called  Judicium  Dei,  sometimes  simply  judicium.  It  was,  like  the 
duel,  the  final  test,  from  which  there  was  no  appeal.  It  was  a 
solemn  invocation  to  Heaven  to  decide  the  matter  in  dispute  and 
the  result  of  the  test  was  regarded  by  the  credulous  masses  as 
effected  by  the  direct  interposition  of  the  Almighty.  But  it  was 
only  when  the  party  had  no  charters  and  could  furnish  neither  wit- 
nesses nor  compurgators,  that  he  resorted  to  ordeal,  except  in  cases 
provided  for  by  special  legislation,  as  by  the  Assises  of  Clarendon 
and  Northampton.  It  was  applicable  to  women  equally  with  men; 
and  it  was  the  legal  mode  of  exculpation  of  a  man  accused  by  a 
woman  of  the  murder  of  her  husband. 

The  ordeal  was  more  extensively  employed  In  the  procedure  of 
the  pre-Norman  period  than  in  the  later.  It  was  the  typical  mode 
of  trial  among  the  English,  contrasting  English  procedure  with  the 
procedure  of  their  Norman  conquerors.  With  them  it  was,  until 
the  Conquest,  the  only  Judicium  Dei  so  far  as  existing  monuments 
bear  witness.  It  was  used  frequently  in  civil  as  well  as  in  criminal 
cases  before  and  for  a  considerable  time  after  the  Conquest.  Even 
Normans  w^ho  affected  to  despise  the  peculiar  institutions  of  the 
English,  sometimes  resorted  to  the  ordeal.  In  the  time  of  the  Con- 
queror his  Norman  Bishop  Remigius  purged  himself  of  a  charge 
of  treason  by  the  ordeal  of  fire,  sustained  by  one  of  the  household 
of  the  accused. 

The  ordeal  may  possibly  have  continued  to  be  legal  mode  of  trial 
for  civil  causes  in  the  twelfth  century  so  far  as  anything  directly  to 
the  contrary  appears,  but  the  encroachment  of  the  duel,  of  compur- 
gation, and  of  the  inquisition,  was  constantly  narrowing  its  appli- 
cation to  such  cases  and  probably  long  before  the  end  of  the  century, 
probably  indeed,  before  the  middle  of  it,  it  had  become  practically 
obsolete  in  civil  litigation.  Its  use  appears  at  the  same  time  to  have 
become  somewhat  narrowed  in  criminal  procedure.  In  the  latter 
half  of  the  twelfth  century  and  probably  earlier,  the  duel  had  come 
to  be  recognized  as  a  mode  of  trial  in  appeals  of  treason,  if  not  in 
appeals  of  crime  generally;    though  in  the  case  of  presentments, 


106  HISTORY  OF  THE  COMMON  LAW 

where  compurgation  had  probably  been  the  common  mode  of  trial, 
the  Assises  of  Clarendon  and  Northampton  had  provided  for  trial 
by  ordeal. 

This  mode  of  trial  finally  received  a  fatal  blow  from  the  well- 
known  decree  of  the  Lateran  Council  of  the  year  1215,  at  which  it 
was  ordered  that  the  ordeal  should  l)e  discontinued  throughout 
Christendom. 

There  were  four  forms  of  ordeal,  to  wit,  by  cold  water,  by  hot 
water,  by  hot  iron  and  by  morsel  or  "corsnaed."  The  first  two 
were  in  the  time  of  Glanvill  for  the  poor  and  partly  unfree  classes, 
the  "rustics";  the  third  was  for  the  lay  freemen;  whilst  the  last,  as 
we  have  seen,  was  for  the  clergy.  The  accused,  however,  appears 
to  have  had  an  election  at  one  time  between  the  modes  by  fire 
and  by  water.  Whether  this  was  true  in  the  twelfth  century  is 
doubtful. 

Each  was  undergone  after  the  most  solemn  religious  ceremonial. 
In  the  case  of  the  cold  water  ordeal,  a  fast  of  three  days  duration 
was  first  submitted  to  in  the  presence  of  a  priest;  then  the  accused 
was  brought  into  the  church,  where  a  mass  was  chanted,  followed 
by  the  communion.  Before  communion,  however,  the  accused  was 
adjured  by  the  Father,  Son  and  Holy  Ghost,  by  the  Christian  Re- 
ligion which  he  professed,  by  the  only  begotten  Son,  by  the  Holy 
Trinity,  by  the  Holy  Gospels,  and  by  the  Holy  Relics,  not  to  par- 
take of  the  communion  if  he  was  guilty.  Communion  having  been 
partaken,  adjuratio  aquae  is  made  by  the  priest  in  which  the  water 
is  asked  to  cast  forth  the  accused  if  guilty,  and  to  receive  him  into 
its  depths  if  innocent.  After  these  ceremonies,  the  accused  is 
stripped,  kisses  the  book  and  the  cross,  is  sprinkled  with  holy  water, 
and  then  cast  into  the  depths.  If  he  sank  he  was  adjudged  not 
guilty;    if  he  swam  he  was  pronounced  guilty. 

Similar  religious  ceremonies  were  performed  in  the  other  forms 
of  ordeal.  If  the  accuser  elected  for  the  accused  the  trial  by  hot 
water,  the  water  was  placed  in  a  vessel  and  heated  to  the  highest 
degree.  Then  if  the  party  were  accused  of  an  inferior  crime,  he 
plunged  his  arm  into  the  water  as  far  as  the  wrist  and  brought  forth 
a  stone  suspended  by  a  cord ;  if  he  were  accused  of  a  great  crime, 
the  stone  was  suspended  deeper,  so  as  to  require  him  to  plunge  his 
arm  as  far  as  his  elljow.  The  hand  of  the  accused  was  then  ban- 
daged and  at  the  end  of  three  days  the  bandage  was  removed.  If 
it  now  appeared  that  the  wound  was  healed,  the  accused  was 
deemed  innocent,  but  if  it  had  festered  he  was  held  guilty. 


THE  JURY  107 

If  trial  by  hot  iron  was  elected,  a  piece  of  iron  weighing  either 
one  or  three  pounds,  according  to  the  nature  of  the  crime  charged, 
was  heated  under  the  direction  of  men  standing  by,  whose  duty  i: 
was  to  see  that  a  proper  heat  was  obtained,  and  kept  until  the  time 
for  the  test  had  arrived.  During  the  final  ceremonies  the  fire  was 
left  and  the  iron  allowed  to  remain  in  the  embers.  It  was  raised 
and  with  an  invocation  to  the  Deity,  given  into  the  naked  hand  of 
the  accused,  who  carried  it  the  distance  of  nine  feet  when  it  was 
dropped,  and  the  hand  bandaged  as  in  the  case  of  the  hot  water 
ordeal  to  abide  by  the  same  test. 

The  ordeal  of  the  morsel,  accompanied  by  similar  ceremonials, 
was  undergone  by  the  accused  undertaking  to  swallow  a  piece  of 
barley  bread  or  a  piece  of  cheese  of  the  weight  of  an  ounce;  if  he 
succeeded  without  serious  difficulty,  he  was  deemed  innocent,  but 
if  he  choked  and  grew  black  in  the  face  he  was  deemed  guilty. 

From  the  Anglo-Saxon  Laws. 

The  oath  of  him  who  discovers  his  property  that  he  does  not  do 
it  either  for  hatred  or  for  envy : 

By  the  Lord  I  accuse  not  N.  either  for  hatred  or  for  envy  or  for 
unlawful  lust  of  gain;  nor  know  I  anything  soother;  but  as  my 
informant  to  me  said,  and  I  myself  in  sooth  believe,  that  he  was  the 
thief  of  my  property. 

And  the  other's  oath  that  he  is  guiltless: 

By  the  Lord  I  am  guiltless  both  in  deed  and  counsel,  of  the  charge 
of  which  N.  accuses  me. 

His  companion's  oath  who  stands  with  him: 

By  the  Lord  the  oath  isclean  and  unperjured  which  N.  has  sworn. 

Oath  if  a  man  finds  his  property  unsound  after  he  has  bought  it: 

In  the  name  of  Almighty  God,  thou  didst  engage  to  me  sound 
and  clean  which  thou  soldest  to  me,  and  full  security  against  after- 
claim,  on  the  witness  of  N.,  who  then  was  with  us  two. 

How  he  shall  swear  who  stands  with  another  in  witness : 

In  the  name  of  Almighty  God,  as  I  here  for  N.,  in  true  witness 
stand,  unbidden  and  unbought,  so  I  with  my  eyes  oversaw  and  with 
my  ears  overheard  that  which  I  with  him  say. 

Oath  that  he  knew  not  of  foulness  or  fraud: 

In  the  name  of  Almighty  God,  I  knew  not  on  the  things  about 
which  thou  suest,  foulness  or  fraud,  or  infirmity  or  blemish,  up  to 
that  day's  tide  that  I  sold  it  to  thee;  but  it  was  both  sound  and 
clean  without  any  kind  of  fraud. 


108  HISTORY  OF  THE  COMMON  LAW 

In  the  name  of  the  Living  God,  as  I  money  demand,  so  have  I 
lack  of  that  which  M.  promised  me  when  I  mine  to  him  sold. 

Denial: 

In  the  name  of  the  Living  God  I  owe  not  to  N.  sceatt  or  shilHng 
or  penny  or  penny's  worth  ;  but  I  have  discharged  to  him  all  that  I 
owed  to  him,  so  far  as  our  verbal  contracts  were  at  first. 

Glanvill,  Bk.  II,  chap.  3.    Beames'  translation. 

When  at  last,  both  the  litigating  parties  are  present  in  court,  and 
the  demandant  has  proceeded  to  claim  the  tenement  in  question, 
the  Tenant  may  pray  a  View  of  the  land.  .  .  .  After  the  three 
reasonable  essoins  which  accompany  the  view  of  the  land,  both  par- 
ties being  again  present  in  court,  the  demandant  should  set  forth 
his  demand  and  claim  in  this  manner.  .  .  .  The  demand  and 
claim  of  the  demandant  being  thus  made,  it  shall  be  at  the  election 
of  the  tenant  either  to  defend  himself  against  the  demandant  by 
duel  or  to  put  himself  upon  the  King's  Grand  Assise,  and  require 
a  Recognition  to  ascertain  which  of  the  two  have  the  greater  Right 
to  the  Land  in  dispute. 

But  here  we  should  observe,  that  after  the  Tenant  had  once 
waged  the  Duel  he  must  abide  by  his  choice,  and  can  not  after- 
wards put  himself  upon  the  Assise.  In  this  stage  of  the  suit  the 
Tenant  may  again  avail  himself  of  the  reasonable  Essoins  in  suc- 
cession with  respect  to  his  own  person  and  of  the  same  number 
with  regard  to  the  person  of  his  Champion.  All  the  Essoins  which 
can  with  propriety  be  resorted  to  having  expired,  it  is  requisite  be- 
fore the  Duel  can  take  place,  that  the  Demandant  should  appear 
in  court,  accompanied  by  his  Champion  armed  for  the  contest.  Nor 
will  it  suffice,  if  he  then  produce  any  other  champion  than  one  of 
those  upon  whom  he  put  the  proof  of  his  claim,  neither  indeed,  can 
any  other  contend  for  him,  after  the  duel  has  been  once  waged. 

But  if  he  who  has  waged  the  duel  should,  in  the  interval,  pend- 
ing suit,  happen  to  die,  a  distinction  is  to  be  made.  If  he  died  a 
natural  death,  and  this  is  declared  by  the  Vicinage  (as  it  ought 
always  to  be,  if  there  exist  any  doubt  concerning  the  fact),  the  de- 
mandant may  in  the  first  place  recur  to  one  of  those  upon  whom  he 
placed  his  proof,  or  to  another  proper  person,  even  if  he  have  not 
named  any  other,  provided  that  such  other  be  an  unobjectionable 
witness  —  and  thus  the  Plea  may  begin  again.  If,  however,  his 
death  was  occasioned  by  his  own  fault,  the  Principal  shall  lose  the 
cause.    It  may  be  asked  whether  the  Champion  of  the  Demandant 


THE  JURY  109 

can  substitute  another  in  Court  to  make  that  proof  which  he  took 
upon  himself?  According,  indeed,  to  the  law,  and  ancient  custom 
of  the  realm,  he  can  not  appoint  any  other,  unless  it  be  his  legitimate 
son,  and  here  it  may  be  observed,  that  the  Champion  of  the  De- 
mandant should  be  such  a  person  as  is  a  proper  witness  of  the  fact. 
Nor  is  it  lawful  for  the  Demandant  to  prosecute  his  appeal  in  his 
own  person,  because  it  is  not  permitted  unless  by  the  intervention 
of  a  proper  witness,  who  has  heard  and  seen  the  fact. 

But  the  Tenant  may  defend  himself,  either  in  his  own  proper 
person,  if  he  choose  so  to  do,  or  by  any  other  unobjectionable  wit- 
ness, if  he  prefer  that  course.  But  if  he  has  produced  a  Champion, 
and  such  a  Champion  should  die  in  the  interval,  it  may  be  asked, 
what  the  law  is,  whether  the  Tenant  may  defend  himself  by  another 
champion,  or  whether  he  ought  to  lose  his  suit,  or  his  seisin  only? 
We  must  have  recourse  to  our  former  distinction.  It  should  be 
remarked  that  the  champion  of  the  tenant  cannot  substitute  an- 
other in  court  for  the  purpose  of  undertaking  the  defence,  unless 
it  be  his  lawful  son. 

But  it  frequently  happens,  that  a  hired  Champion  is  produced  in 
court,  who  on  account  of  a  reward  has  undertaken  the  proof.  If 
the  adverse  party  should  except  to  the  person  of  such  a  Champion, 
alleging  him  to  be  an  improper  witness,  because  he  had  accepted 
a  reward  to  undertake  the  proof,  and  should  add,  that  he  was  pre- 
pared to  prove  this  accusation  against  the  Champion  (if  the  latter 
chose  to  deny  it)  either  by  himself  or  by  another,  who  was  present 
when  the  Champion  had  taken  the  rewafd,  the  party  shall  be  heard 
upon  this  charge,  and  the  principal  Duel  shall  be  deferred.  If, 
upon  this  charge,  the  Champion  of  the  Demandant  should  be  con- 
victed and  conquered  in  the  Duel,  then  his  principal  shall  lose  the 
suit,  and  the  Champion  himself,  as  conquered,  shall  lose  his  law, 
namely,  he  shall  thenceforth  never  be  admitted  in  court,  as  a  wit- 
ness for  the  purpose  of  making  proof  by  Duel,  for  any  other  per- 
son; but  with  respect  to  himself,  he  may  be  admitted,  either  in 
defending  his  own  body,  or  in  prosecuting  an  atrocious  personal 
injury  as  being  a  violation  of  the  King's  peace.  He  may  also  de- 
fend his  right  to  his  own  Fee  and  Inheritance,  by  Duel. 

The  Duel  being  finished,  a  fine  of  sixty  shillings  shall  be  imposed 
upon  the  party  conquered  in  the  name  of  Recreantise,  and  besides 
which  he  shall  lose  his  law;  and  if  the  Champion  of  the  Tenant 
should  be  conquered  his  Principal  shall  lose  the  Land  in  question, 
with  all  the  fruits  and  produce  upon  it  at  the  time  of  Seisin  of  the 


no  HISTORY  OF  THE  COMMON  LAW 

fee,  and  never  again  shall  be  heard  in  Court  concerning  the  same 
Land.  For  those  matters,  which  have  been  once  determined  in  the 
King's  Court  by  Duel,  remain  forever  after  unalterable.  L  pon  the 
determination  of  the  suit,  let  the  Sheriff  be  commanded  by  the  fol- 
lowing writ,  to  give  possession  of  the  land  to  the  successful  party. 

This  is  the  course  of  proceeding,  when  the  Demandant  has  been 
successful  in  the  Duel.  But  if  he  has  been  conquered,  in  the  person 
of  his  Champion,  then  the  Tenant  shall  be  freed  from  his  claim, 
without  any  possibility  of  being  again  disturbed  by  him.  Thus  far 
concerning  the  Duel,  where  the  Tenant  should  chuse  or  elect  that 
mode  of  defending  himself,  against  his  Adversary. 

ii.     Development  of  the  jury. 

Capitltlary  of  Louis  L,  King  of  the  Franks,  829.  Trans- 
lated from  Walter,  Corpus  Juris  Germanici,  H,  388. 
VL  We  will  that  every  inquest  (inquisitio)  which  is  to  be  made 
of  matters  pertaining  to  the  right  of  our  fisc  be  made  not  by  wit- 
nesses who  shall  have  been  brought  forward,  but  by  those  who  in 
that  county  are  known  to  be  best  and  most  truthful;  by  their  testi- 
mony let  there  be  an  inquest,  and  according  to  what  they  shall  have 
testified,  let  them  be  retained  or  paid. 

Abbot  of  St.  Augustine's  Case,  before  the  King's  son  in  his 
absence  (Temp.  William  L)  Translated  from  Bigelow, 
Placita  Anglo-Normannica,  33. 

William,  the  son  of  the  King,  to  William,  sheriff"  of  Kent,  Greet- 
ing: I  command  that  you  command  Hamo,  son  of  Vitalis,  and  the 
honest  men  of  the  vicinage  of  Sandwich,  whom  Hamo  has  named, 
that  they  declare  the  truth  concerning  the  ship  of  the  Abbot  of  St. 
Augustine,  and  if  that  ship  ])roceeded  through  the  sea  on  the  day 
when  the  king  last  crossed  the  sea,  then  I  command  that  it  now 
proceed  until  the  King  comes  into  England,  and  meanwhile  let  the 
said  Abbot  be  reseised.  Witness  the  Bishop  of  Salisbury  and 
Chancellor  at  Woodstock. 

(Execution  in  same  case.) 

William,  son  of  the  King,  to  William,  sheriff  of  Kent,  Greeting: 
I  command  that  you  reseise  the  Abbot  of  St.  Augustine  of  his  ship, 
as  I  commanded  by  my  other  writ,  and  as  it  was  found  by  the 
honest  men  of  tlie  county  that  the  Abbot  was  then  seised  on  the  day 


THE  JURY  111 

when  last  the  king  crossed  the  sea;  and  let  him  hold  it  in  peace. 
Witness  the  Chancellor  at  Windsor.  And  this  without  delay  that 
I  may  hear  no  more  complaint  thereof.     Witness  the  same. 

Extracts  from  Glanvill,  Bk.  II. 

But  if  the  tenant  should  prefer  putting  himself  upon  the  king's 
Grand  Assise,  the  Demandant  must  either  adopt  the  same  course, 
or  decline  it.  If  the  Demandant  has  once  conceded  in  Court  that 
he  would  put  himself  upon  the  Assise,  and  has  so  expressed  himself 
before  the  Justices  of  the  Common  Pleas,  he  can  not  afterwards 
retract,  but  ought  to  stand  or  fall  by  the  Assise. 

The  Grand  Assise  is  a  certain  royal  benefit  bestowed  upon  the 
people,  and  emanating  from  the  clemency  of  the  prince,  with  the 
advice  of  his  nobles.  So  effectually  does  this  proceeding  preserve 
the  lives  and  civil  condition  of  Men,  that  every  one  may  now  pos- 
sess his  right  in  safety,  at  the  time  that  he  avoids  the  doubtful  event 
of  the  Duel.  Nor  is  this  all:  the  severe  punishment  of  an  unex- 
pected and  premature  death  is  evaded,  or,  at  least  the  opprobrium 
of  a  lasting  infamy,  or  that  dreadful  and  ignominious  word  that  so 
disgracefully  resounds  from  the  mouth  of  the  conquered  Cham- 
pion. 

This  legal  Institution  flows  from  the  most  profound  Equity. 
For  that  Justice,  which,  after  many  and  long  delays,  is  scarcely, 
if  ever,  elicited  by  the  Duel,  is  more  advantageously  and  expedi- 
tiously attained,  through  the  benefit  of  this  Institution.  This  As- 
sise, indeed,  allows  not  so  many  Essoins  as  the  Duel,  as  will  be 
seen  in  the  sequel.  And  by  this  course  of  proceeding,  both  the 
labor  of  men  and  the  expenses  of  the  poor  are  saved.  Besides, 
by  so  much  as  the  testimony  of  many  credible  witnesses,  in  judicial 
proceedings,  preponderates  over  that  of  one  only,  by  so  much 
greater  Equity  is  this  Institution  regulated  than  that  of  the  Duel. 
For  since  the  Duel  proceeds  upon  the  testimony  of  one  Juror,  this 
constitution  requires  theoaths  of  twelve  lawful  men,  at  least.  These 
are  the  proceedings  which  lead  to  the  Assise.  The  party  who  puts 
himself  upon  the  Assise  should,  from  the  first,  and  in  order  to  pre- 
vent his  Adversary  from  subsequently  impleading  him,  sue  out  a 
writ  for  keeping  the  peace,  the  suit  being  already  pending  between 
the  parties  concerning  the  Tenement,  and  the  Tenant  having  put 
himself  upon  the  Assise. 

By  means  of  such  Writs,  the  Tenant  may  protect  himself  and 
may  put  himself  upon  the  Assise,  until  his  Adversary,  appearing 


112  HISTORY  OF  THE  COMMON  LAW 

in  Court,  pray  another  Writ,  in  order  that  four  lawful  Knights  of 
the  County,  and  of  the  Vicinage,  might  elect  twelve  lawful  Knights 
froin  the  same  Vicinage,  who  should  say,  upon  their  oaths,  which 
of  the  litigating  parties  have  the  greater  right  to  the  Land  in  ques- 
tion.    The  Writ  for  the  summoning  of  the  four  Knights  is  as  follows: 

"The  King  to  the  Sheriff,  Health.  Summon,  by  good  summon- 
ers,  four  lawful  Knights  of  the  Vicinage  of  Stoke,  that  they  be  at 
the  Pentecost  before  me,  or  my  Justices,  at  Westminster,  to  elect 
on  their  oaths,  twelve  lawful  Knights  of  that  Vicinage,  who  better 
know  the  truth,  to  return,  on  their  oaths,  whether  M.  or  R.  have 
the  greater  right  in  one  Hyde  of  Land  in  Stoke,  which  M.  claims 
against  R.  by  my  Writ,  and  of  which  R.  the  Tenant,  hath  put  him- 
self upon  my  assise  and  prays  a  Recognition  to  be  made,  which  of 
them  have  the  greater  right  in  that  Land;  and,  cause  their  names 
to  be  imbre\'iated.  And  summon,  by  good  summoners,  R.  who 
holds  the  Land,  that  he  be  there  to  hear  the  election,  and  have  there 
the  Summoners,  etc." 

Upon  this  occasion,  whether  the  Tenant  appear  or  absent  himself, 
the  four  Knights  shall  proceed  upon  their  oaths  to  elect  the  twelve. 
But,  if  the  tenant  himself  be  present  in  Court,  he  may  possibly  have 
a  just  cause  of  Exception  against  one  or  more  of  the  twelve,  and 
concerning  this  he  should  be  heard  in  Court.  It  is  usual,  indeed, 
for  the  purpose  of  satisfying  the  absent  party,  not  to  confine  the 
number  to  be  elected  to  twelve,  but  to  comprise  as  many  more  as 
may  incontrovcrtibly  satisfy  such  absent  party,  when  he  return  to 
Court.  For  Jurors  may  be  excepted  against  by  the  same  means  by 
which  Witnesses  in  the  Court  Christian  are  justly  rejected.  It  should 
also  be  observed,  that  if  the  party,  who  has  put  himself  upon 
the  grand  Assise,  appear,  although  some  of  the  four  Knights  are 
absent,  the  twelve  may  be  elected  by  one  of  the  four  taking  to  him- 
self two  or  three  other  Knights  from  the  same  County,  if  such 
happen  to  be  in  Court,  though  not  summoned  for  the  purpose,  pro- 
vided such  course  of  proceeding  meet  with  the  approbation  of  the 
Court,  and  be  mutually  consented  to  by  the  litigating  parties.  But, 
for  greater  caution,  and  to  avoid  all  possible  cavil,  it  is  usual  to 
summons  six  or  more  Knights  to  Court,  for  the  purpose  of  making 
the  election. 

The  election  of  the  twelve  Knights  having  been  made,  they  should 
be  summoned  to  appear  in  Court,  prepared  upon  their  oaths  to 
declare,  which  of  them,  namely,  whether  the  Tenant,  or  the 
Demandant,  possess  the  greater  right  to  the  property  in  question. 


THE  JURY  113 

When  the  Assise  proceeds  to  make  the  Recognition,  the  right 
will  be  well  known  either  to  all  the  Jurors,  or  some  may  know  it, 
and  some  not,  or  all  may  be  alike  ignorant  concerning  it.  If  none 
of  them  are  acquainted  with  the  truth  of  the  matter,  and  this  be 
testified  upon  their  oaths  in  Court,  recourse  must  be  had  to  others, 
until  such  can  be  found  who  do  know  the  truth  of  it.  Should  it, 
however,  happen  that  some  of  them  know  the  truth  of  the  matter, 
and  some  not,  the  latter  are  to  be  rejected,  and  others  summoned 
to  Court,  until  twelve,  at  least,  can  be  found  who  are  unanimous. 
But,  if  some  of  the  jurors  should  decide  for  one  party,  and  some 
of  them  for  the  other,  then  others  must  be  added,  until  twelve  at 
least,  can  be  obtained  who  agree  in  favor  of  one  side.  Each  of  the 
Knights  summoned  for  this  purpose  ought  to  swear,  that  he  will 
neither  utter  that  which  is  false,  nor  knowingly  conceal  the  truth. 
With  respect  to  the  knowledge  requisite  on  the  part  of  those  sworn, 
they  should  be  acquainted  with  the  merits  of  the  cause,  either  from 
what  they  have  personally  seen  and  heard,  or  from  the  declaration 
of  their  Fathers,  and  from  other  sources  equally  entitled  to  credit, 
as  if  falling  within  their  own  immediate  knowledge. 

When  the  twelve  Knights,  who  have  appeared  for  the  purpose 
of  making  Recognition,  entertain  no  doubt  about  the  truth  of  the 
thing,  then,  the  Assise  must  proceed  to  ascertain,  whether  the  De- 
mandant, or  Tenant,  have  the  greater  light  to  the  subject  in  dis- 
pute. 

But  if  they  decide  in  favor  of  the  Tenant,  or  make  any  other 
declaration,  by  which  it  should  sufficiently  appear  to  the  King,  or 
his  justices,  that  the  Tenant  has  greater  right  to  the  subject  in 
dispute,  then,  by  the  Judgment  of  the  Court,  he  shall  be  dismissed, 
forever  released  from  the  claim  of  the  Demandant,  who  shall  never 
again  be  heard  in  Court  with  effect  concerning  the  matter.  For 
those  questions  which  have  been  lawfully  determined  by  the  King's 
Grand  Assise,  shall  upon  no  subsequent  occasion  be  with  propriety 
revived.  But,  if  by  this  Assise  it  be  decided  in  Court  in  favor  of 
the  Demandant,  then,  his  Adversary  shall  lose  the  Land  in  question, 
which  shall  be  restored  to  the  Demandant,  together  with  all  the 
fruits  and  produce  found  upon  the  Land  at  the  time  of  Seisin. 

Extracts  from  Glanvill,  Bk.  XII L 

The  general  course  of  proceedings,  as  they  more  usually  occur 
in  Court  upon  the  foregoing  Writs  of  Right,  having  been  so  far 
treated  of,  it  now  remains  to  speak  concerning  the  steps  commonly 


114  HISTORY  OF  THE  COMMON  LAW 

resorted  to,  Avhere  Seisin  alone  is  in  question.  As  these  questions 
are,  under  the  beneficial  pro\isions  of  a  law  of  the  Realm,  which 
is  termed  an  Assise,  usually  and  for  the  most  part  decided  by  a 
Recognition,  our  subject  leads  us  to  treat  of  the  different  kinds  of 
Recognition. 

There  is  one  species  of  Recognition  which  is  called  mort  d 'An- 
cestor —  another  de  ultimis  presentationilnis  of  Parsons  to  their 
churches — another,  whether  a  Tenement  be  an  Ecclesiastical  Fee  or 
Lay  Fee  —  another,  whether  any  one  was  seised  of  a  Freehold  on 
the  day  of  his  death,  as  of  fee  or  as  of  pledge  —  another,  whether 
anyone  be  under  age  or  of  full  age  —  another,  whether  any  one  died 
seised  of  a  certain  Freehold  as  of  Fee,  or  as  of  ward  —  another, 
whether  any  one  presented  the  last  Parson  to  a  Church  by  virtue 
of  a  Fee  that  he  held  in  his  Demesne,  or  by  virtue  of  a  Wardship. 
And  others  of  a  similar  description,  which,  as  they  frequently  arise 
in  Court  when  the  parties  are  present,  are,  with  their  consent  and 
the  advice  of  the  Court,  directed  in  order  to  determine  the  point  in 
controversy.  But  there  is  another  Recognition  which  is  called 
Novel  Disseisin. 

In  the  last  place,  it  remains  for  us  to  speak,  concerning  that  spe- 
cies of  Recognition,  which  is  called  Novel  Disseisin.  When  any 
one,  therefore,  unjustly  and  without  a  Judgment  has  disseised  an- 
other of  his  freehold;  and  the  case  fall  within  the  King's  Assise, 
or  in  other  words,  within  the  time  for  such  purpose  appointed  by 
the  King  with  the  advice  of  his  Nobles  (which  is  sometimes  a 
greater,  sometimes,  a  less  period)  he  shall  have  the  following 
Writ:— 

"The  King  to  the  Sheriff,  Health.  N.  complains  to  me,  that  R. 
has,  unjustly  and  without  a  Judgment,  disseised  him  of  his  free 
Tenement,  in  such  a  vill,  since  my  last  Voyage  into  Normandy; 
and,  therefore  I  command  you,  that  if  the  aforesaid  N.  should  make 
you  secure  of  prosecuting  his  claim,  then,  you  cause  the  Tenement 
to  be  reseised,  with  the  chattels  taken  on  it,  and  that  you  cause  him 
with  his  chattels  to  be  in  peace,  until  the  Pentecost;  and,  in  the 
meantime,  you  cause  twelve  lawful  and  free  Men  of  the  Neighbor- 
hood to  view  the  land,  and  their  names  to  be  imbreviated ;  and  sum- 
mon them,  by  good  summoners,  that  they  be  then  before  me,  or 
my  Justices,  prepared  to  make  the  Recognition;  and  put  by  gage 
and  safe  pledges,  the  aforesaid  R.  or  his  Bailiff,  if  he  be  not  found, 
that  he  be  then  there  to  hear  such  Recognition,  and  have  there,  etc. 
Witness,  etc." 


THE  JURY  115 

But  in  this  recognition,  the  party  who  has  proved  the  Novel 
Disseisin,  may  obtain  that  the  Sheriff  should  be  directed  to  deliver 
him  the  Chattels  and  the  Fruits,  which  have,  by  the  authority  of 
the  King's  Writ,  or  that  of  his  Justices,  been  in  the  meantime  seised. 
In  no  other  Recognition  does  the  Judgment  of  the  Court  usually 
make  any  mention  concerning  the  Chattels  or  Fruits, 

Bracton,  Bk.  Ill,  tr.  2,  chap.  1,  §§1—2. 

A  general  summons  to  appear  before  the  justices  itinerant  at 
certain  days  and  places  having  been  issued,  which  ought  to  con- 
tain at  least  a  space  of  fifteen  days,  we  must  see  in  the  first  place 
in  what  manner  and  in  what  order  proceedings  should  be  held. 
And  it  is  to  be  known  in  the  first  place,  that  they  ought  to  begin 
with  the  pleas  of  the  Crown,  in  which  criminal  actions,  as  well 
greater  and  less,  are  determined,  unless  the  lord  the  king  himself 
by  chance  has  in  some  part  ordered  it  to  be  done  otherwise.  And 
in  the  first  place  let  the  writs  be  read,  which  give  them  authority 
and  power  to  make  an  iter,  that  it  may  be  known  respecting  their 
authority,  which  having  been  heard,  if  it  should  please  the  judges, 
that  some  one  of  the  older  and  more  discreet  in  the  presence  of  them 
all  set  forth  the  cause  of  their  coming,  and  what  is  the  utility  of 
their  itineration,  and  what  is  the  advantage,  if  peace  is  observed, 
and  these  words  are  accustomed  to  be  set  forth  by  Martin  de 
PateshuU.  In  the  first  place,  concerning  the  peace  of  the  lord  the 
king  and  the  violation  of  his  justice  by  murderers  and  robbers  and 
burglars,  who  exercise  their  malice  by  day  and  by  night,  not  only 
against  men  travelling  from  place  to  place,  but  men  sleeping  in  their 
beds,  and  that  the  lord  the  king  commands  all  his  faithful  subjects, 
that  in  the  faith  by  which  they  are  bound  to  him,  as  they  wish 
to  preserve  their  own  goods,  that  they  should  afford  efficient  and 
diligent  counsel  and  advice  to  preserve  his  peace  and  justice,  and  to 
remove  and  repress  the  malice  of  the  aforesaid,  and  more  words  of 
this  kind ;  which  having  been  set  forth  the  justices  ought  to  transfer 
themselves  to  some  retired  place,  and  having  called  to  themselves 
four  or  six  or  more  of  the  greater  men  of  the  county,  who  are  called 
the  "busones"  of  the  county,  and  upon  whose  nod  depends  the  votes 
of  the  others,  the  justices  should  thereupon  have  a  consultation 
with  them  in  turns,  and  explain  to  them  how  it  has  been  provided 
by  the  king  and  by  his  counsel,  that  all  as  well  knights  as  others, 
who  are  of  fifteen  years  and  more,  ought  to  swear,  that  they 
will   not  harbour   outlaws,   murderers,   robbers,  or   burglars,  nor 


116  HISTORY  OF  THE  COMMON  LAW 

confederate  with  them  or  their  harbourers,  and  if  they  should  know 
of  any  such,  they  will  cause  them  to  be  attached  and  declare  it  to 
the  viscount  ^  and  his  bailiffs,  and  if  they  shall  hear  hue  and  cry 
respecting  such  people,  immediately  on  hearing  the  cry  they  shall 
follow  with  their  household  and  the  men  of  their  land. 

They  shall  swear  also  that  if  any  one  shall  come  in  the  vill  or 
the  borough  or  elsewhere,  and  shall  buy  bread,  beer,  or  other 
victuals,  and  shall  be  held  to  be  suspected  that  he  is  doing  this  for 
the  help  of  the  malefactors,  that  they  shall  arrest  him  and  deliver 
him  arrested  to  the  viscount  or  his  bailiffs.  They  shall  swear  also 
that  they  will  receive  no"  one  into  their  house  at  night  to  lodge 
there,  unless  he  be  well  know^n  to  them,  and  if  by  chance  they 
shall  have  received  any  one  to  lodge,  they  shall  not  allow  him  to  go 
away  on  the  morrow  before  clear  day,  and  this  upon  the  testimony 
of  three  or  four  of  the  next  neighbours.  Let  there  be  convoked 
afterwards  the  Serjeants  and  bailiffs  of  the  hundreds,  and  let  there  be 
enrolled  in  order  the  inhabitants  of  the  hundreds  or  the  wapentakes, 
and  the  names  of  the  Serjeants,  of  whom  each  shall  pledge  his 
faith,  that  he  will  choose  from  each  hundred  four  knights,  who 
shall  come  forthwith  before  justices  to  perform  the  precept  of  the 
lord  the  king,  and  who  shall  forthwith  swear  that  they  will  choose 
twelve  knights,  or  free  and  loyal  men  if  knights  cannot  be  found, 
who  have  no  suit  against  any  one,  and  are  not  sued  themselves, 
nor  have  evil  fame  for  breaking  the  peace  or  for  the  death  of  a  man 
or  other  misdeed,  and  through  whom  the  business  of  the  king  may 
be  better  and  more  usefully  expedited.  And  let  them  cause  the 
names  of  those  persons  to  be  enrolled  in  a  certain  schedule,  and 
let  them  deliver  the  schedule  to  the  justices,  who  also,  when  they 
shall  have  come,  shall  swear  in  this  form,  in  the  first  place  thus: 

Hear  this,  ye  justices,  that  I  will  speak  the  truth  concerning  this 
which  ye  shall  ask  me  on  the  part  of  the  lord  the  king,  and  I  will 
do  faithfully  that  which  you  shall  enjoin  me  on  the  part  of  the 
lord  the  king,  and  I  will  not  omit  for  any  one  not  to  do  so  according 
to  my  ability,  so  may  God  help  me  and  these  holy  gospels  of  God. 
And  afterwards  they  shall  each  of  the  others  swear  separately  and 
by  himself:  The  like  oath  which  A.  the  first  juror  has  here  sworn, 
I  will  keep  on  my  part,  so  may  God  help  me  and  these  holy  etc. 

'  Latin  vicecomes,  sheriff.  Wherever  the  word  occurs  in  the  extracts  from 
Bracton,  sheriff  should  be  read.     Viscount  is  a  poor  translation. 


THE  JURY  117 

And  when  they  have  all  so  sworn,  let  there  be  read  to  them  the 
articles  in  order,  concerning  which  they  shall  answer  before  the 
justices,  which  things  having  been  heard,  let  it  be  told  them  forth- 
with that  they  shall  answer  distinctly  and  openly  in  their  verdict 
upon  each  article,  separately  and  sufficiently  of  itself,  and  shall 
have  their  verdict  by  a  certain  day,  and  let  it  be  said  apart  to  them 
that  if  there  be  any  one  in  their  hundred  or  wapentake  who  is  of 
evil  repute  respecting  any  misdeed,  they  shall  seize  him,  if  possible, 
but  if  that  be  not  possible  they  shall  cause  the  names  of  such  per- 
sons to  be  given  secretly  to  the  justices,  and  the  names  of  all  per- 
sons who  are  of  ill  repute,  in  a  certain  schedule,  and  the  viscount  be 
enjoined  to  seize  them  forthwith,  and  to  cause  them  when  so  seized 
to  appear  before  the  justices,  that  the  justices  may  execute  justice 
against  them.  But  the  articles,  which  are  to  be  propounded  to 
those  twelve,  are  sometimes  varied  according  to  the  variety  of 
times  and  places,  and  sometimes  they  are  augmented  and  some- 
times they  are  diminished.  But  nevertheless  let  something  be 
said  concerning  the  articles  (for  example's  sake)  in  what  manner 
they    are    propounded    in    order. 

Bractox,  Bk.  IV,  tr.  1,  chap.  19,  §§1-6. 

But  when  they  have  come,  exception  may  be  taken  in  many  ways 
against  the  jurors.  For  they  can  be  repelled  from  taking  the  oath, 
in  the  same  way  as  witnesses  from  giving  testimony.  But  an 
infamous  person  is  repelled  from  taking  the  oath,  to  wit,  a  person 
who  has  been  convicted  of  perjury,  because  he  has  lost  his  law, 
and  for  that  reason  it  is  said  that  he  is  no  longer  law-worthy,  as  is 
said  in  English:  "He  ne  es  othes  worthe  that  es  enes  gylty  of  oth 
broken."  Likewise  a  person  is  repelled  from  taking  the  oath  on 
account  of  a  great  and  not  a  light  enmity,  present  and  not  one 
which  was  some  time  ago,  and  not  recently  when  he  is  produced. 
Likewise  a  person  is  repelled  on  account  of  present  friendship,  as  on 
account  of  hatred.  Likewise  he  is  repelled  who  has  made  any 
claim  of  right  in  the  thing  concerning  which  he  ought  to  swear. 
Likewise  a  serf  is  repelled  from  the  oath  of  the  jurors,  and  this  upon 
the  simple  word  of  the  protestors.  .  .  .  Likewise  he  is  repelled 
on  account  of  a  close  and  not  a  slight  intimacy.  Likewise  on 
account  of  consanguinity  and  present  affinity,  because  they  walk 
almost  in  the  same  steps,  and  this  unless  he  is  connected  with  the 
other  party  by  the  same  tie  of  consanguinity  or  affinity.  The  same 
may  be  said  above  concerning  friendship,  intimacy,  and  enmity. 


118  HISTORY  OF  THE  COMMON  LAW 

Likewise  he  is  repelled,  if  he  be  accustomed  to  take  his  meals  with 
hnii  for  whom  he  ought  to  swear,  or  is  of  his  family.  Likewise  if 
he  be  so  under  his  power,  that  he  may  be  controlled  or  hurt  or  such 
like,  as  if  he  be  in  his  household  or  so  under  his  hand  that  he  can  be 
aggrieved  in  any  way  in  regard  of  suits,  services,  or  customs.  Like" 
wise  if  a  juror  or  any  of  the  parties  be  in  the  same  cause  or  a  similar 
one.  Likewise  he  is  repelled,  if  he  is  the  counsel  of  either  party 
or  the  advocate.  Likewise  it  is  to  be  noted  that  the  causes  of 
suspicion  are  sometimes  present,  and  sometimes  past,  and  that 
which  has  been  and  is  not,  has  no  place.  Because  a  present  cause 
ought  to  be  alleged  and  proved,  but  not  a  past  cause,  because  that 
which  has  been,  is  not,  and  for  that  reason  it  has  no  place,  nor 
ought  it  to  be  approved.  Likewise  a  cause  is  not  sufficient,  which 
is  of  long  standing,  unless  it  be  present  or  recent,  as  for  instance, 
if  a  juror  and  one  of  the  parties  were  enemies  before  yesterday,  or 
the  day  before  yesterday,  and  although  they  are  now  not  so, 
nevertheless  such  a  cause  of  refusal  is  probable  on  account  of  its 
recent  character.  But  there  are  several  other  causes  of  refusing 
jurors,  concerning  which  I  do  not  at  present  recollect,  but  which 
have  been  sufficiently  enumerated  for  example's  sake.  And  it  is  to 
be  known  that  if  once  they  be  chosen  with  the  consent  of  the 
parties,  they  cannot  be  refused  on  account  of  some  new  and 
supervening  cause. 

But  when  the  parties  have  consented  to  the  jurors,  then  let  the 
assise  proceed,  and  they  ought  immediately  to  swear  in  this  form, 
and  the  first  in  these  words:  Hear  this,  ye  justices,  that  I  will 
declare  the  truth  of  this  assise,  and  of  the  tenement  of  which  I  have 
made  a  view  under  the  precept  of  the  lord  the  king;  or  thus,  of  the 
tenement  from  which  the  said  rent  proceeds.  Likewise  if  it  be  a 
common  right  of  pasture,  then  thus:  Concerning  the  pasture  and 
the  tenement  or  tenements  whereof  I  have  made  a  view.  Likewise 
if  anything  be  done  as  a  nuisance  on  the  ground  of  one  person,  that 
is  a  nuisance  to  the  ground  of  another,  as  if  a  wall  be  raised;  then 
let  it  be  explained  first  concerning  the  thing  which  is  the  nuisance, 
and  afterwards  concerning  the  tenement  to  which  the  nuisance  is 
worked,  thus:  Concerning  the  wall  and  tenement  and  such  like 
whereof  I  have  made  a  view,  etc.  And  so  generally  concerning  all 
things,  in  regard  of  which  assises  are  held  principally,  and  then: 
"and  I  will  for  nothing  omit  to  say  the  truth,  so  may  God  me  help 
and  these  hallowed  things."  And  afterwards  let  all  the  jurors 
swear  in  order,  each  by  himself,  and  in  this  manner:   "Such  oath  as 


THE  JURY  119 

he  our  said  foreman  has  sworn,  "I  will  keep  on  my  part,  so  help  me 
God  and  these  hallowed  things,"  etc.  And  it  is  to  be  noted  that 
several  assises  may  be  held  under  one  and  the  same  oath,  just  as 
several  novel  disseysines  concerning  a  tenement,  and  then  thus: 
to  wit,  that  I  will  speak  the  truth  concerning  those  assises  and  tene- 
ments, and  in  like  manner  concerning  the  tenement,  from  which  the 
said  rent  is  derived.  Like\vise  if  a  common  right  of  pasture  is 
adjunct,  then  thus:  concerning  the  said  tenements  and  the  common 
right  of  pasture  and  the  tenement,  of  which  I  have  made  a  view, 
etc.  Likewise  if  a  nuisance  be  adjunct,  then,  after  repeating  all  as 
above  said,  let  it  be  said:  concerning  the  foss,  wall,  or  hedge,  and 
such  like,  and  concerning  the  tenements  of  which  I  have  made  a 
view,  etc.  And  so  let  it  be  done  in  all  assises,  as  of  last  presenta- 
tion, of  the  death  of  an  ancestor,  and  others.  Likewise  as  several 
disseysines  may  be  terminated  by  one  jury  or  by  several,  so  may 
several  disseysines  arise  out  of  one  act  and  be  terminated  by  one 
assise  or  by  several,  as  below.  The  oath  then  having  been  taken, 
as  aforesaid,  then  let  the  chief  notary  read  the  substance  of  the  writ 
for  the  instruction  of  the  jurors,  in  this  manner:  Ye  shall  declare 
by  the  oath  which  you  have  made,  if  the  said  N.  had  unjustly  and 
without  a  judgment  disseysed  the  said  N.  of  his  free  tenement  in 
such  a  vill  since  the  last  return  of  king  Henry,  etc.  or  not.  But 
the  justices  shall  say  nothing  in  this  case  for  the  instruction  of  the 
jurors,  because  nothing  is  said  nor  excepted  from  the  commence- 
ment against  the  assise.  But  when  the  oath  has  thus  been  made, 
let  the  jurors  retire  into  some  separate  place,  and  have  a  con- 
ference amongst  themselves  concerning  the  matter  which  they  have 
been  enjoined  to  execute,  to  whom  let  no  one  have  access  nor  have 
conversation  with  them,  until  they  have  declared  their  verdict, 
nor  let  them  by  sign  or  word  manifest  to  any  one  what  is  about 
to  be  said  by  them. 

It  happens  also  on  many  occasions  that  the  jurors  in  saying  the 
truth  are  contrary  to  one  another,  so  that  they  cannot  decline  into 
one  opinion.  In  which  case  with  the  advice  of  the  court  the  assise 
may  be  strengthened,  so  that  others  may  be  added  according  to  the 
number  of  the  greater  part  which  has  dissented,  or  kt  least  four  or 
six  and  let  them  be  adjoined  to  the  others,  or  even  let  them  by 
themselves  without  the  others  discuss  and  judge  respecting  the 
truth,  and  let  them  answer  by  themselves,  and  their  verdict  shall 
be  allowed  and  shall  hold  good  with  those  with  whom  they  agree; 
and  the  others  shall  not  be  convicted  for  this  reason,  but  shall  be 


120  HISTORY  OF  THE  COMMON  LAW 

amerced  as  if  for  a  trespass,  for  it  may  still  be  the  fact  that  they 
have  spoken  the  truth  and  the  others  a  falsehood,  who  may  still  be 
convicted  of  perjury.  But  when  after  their  oath  they  ha\e  gi\en 
their  verdict  either  for  one  party  or  for  the  other,  according  to  their 
declaration  let  judgment  be  pronounced,  unless  they  ha\-e  said 
something  obscure,  on  account  of  which  the  justices  may  be  led  to 
examine,  and  either  the  seysine  shall  be  adjudged  to  the  plaintifif, 
or  the  defendant  shall  withdraw  acquitted  with  his  seysine:  and 
sometimes  it  happens  that  each  party  will  remain  at  mercy,  or  one 
only.  And  in  the  same  way  sexeral  disseysors  by  name,  some  fall 
under  the  penalty  of  disseysine,  and  some  shall  retire  acquitted. 
And  if  they  have  spoken  for  the  defendant,  the  plaintifif  only  is  at 
mercy,  and  not  his  sureties,  because  he  has  prosecuted,  although  he 
has  had  an  adverse  judgment.  The  recognisors  also  may  expound 
the  whole  truth  of  the  business  in  short  and  few  words  to  the  justices, 
if  all  things  are  plain  and  fitted,  and  nothing  is  obscure.  But  if 
such  doubtfulness  or  obscurity  arises,  that  the  solution  is  difiicult, 
then  let  them  be  compelled  to  declare  more  clearly  and  more  openly 
those  things  which  are  obscure,  if  this  is  possible  for  them,  and  the 
justices  according  to  their  declaration  proceed  to  judgment.  But 
if  they  cannot  clear  up  that  obscurity  or  doubtfulness  in  any  man- 
ner, to  wit,  neither  the  recognisors  themselves  nor  the  others  who 
have  been  called  to  reinforce  them,  then  it  will  be  safer  that  the 
parties  be  induced  to  agree,  if  it  be  possible,  or  let  the  judgment  be 
referred  to  the  high  court,  and  there  let  the  business  be  determined 
with  the  advice  of  the  court.  But  if  all  things  are  plain  which  are 
contained  in  the  record,  then  proceedings  are  to  be  had  according 
to  their  declarations,  and  if  they  have  well  sworn,  their  verdict 
shall  be  binding;  but  if  ill,  there  will  be  place  for  a  conviction;  but 
if  they  have  spoken  obscurely  and  dubiously,  where  a  single  speech 
may  have  a  double  meaning,  or  if  the  parties  have  been  not  fully 
examined,  there  will  be  place  for  a  certificate,  as  will  be  explained 
below. 

It  will  therefore  have  to  be  seen,  whether  they  have  spoken 
with  certainty  or  with  uncertainty,  with  clearness  or  with  obscurity, 
or  whether  they  have  been  doubtful  in  their  verdict,  or  have  been 
altogether  ignorant.  Likewise  whether  they  have  said  anything 
against  the  person  of  the  plaintiff,  why  he  may  not  bring  an  assise, 
or  against  the  person  of  the  defendant,  why  he  may  not  except 
against  an  assise,  either  because  they  say  that  on  account  of  an  error 
in  the  writ  it  cannot  stand,  or  they  answer  according  to  those  things, 


THE  JURY  121 

which  are  enjoined  to  them,  and  which  pertain  to  the  assise  only. 
But  if  they  have  spoken  with  certainty  concerning  "those  things 
which  pertain  to  the  assise,  and  not  against  the  writ,  then  it  is 
either  true  or  false.  If  true,  their  verdict  must  stand,  nor  will  a 
conviction  have  to  be  feared.  But  if  false,  then  either  knowingly 
or  ignorantly :  if  knowingly,  they  commit  perjury;  but  if  ignorantly, 
as  if  they  have  been  led  by  any  just  mistake,  they  are  excused  of 
grace.  But  if  they  have  spoken  with  uncertainty,  the  judge  ought 
to  examine,  that  he  may  make  it  certain  out  of  what  is  uncertain, 
clear  out  of  what  is  obscure,  true  out  of  what  is  doubtful,  otherwise 
their  oath  will  be  doubtful  and  perilous,  and  hence  might  follow 
a  fatuous  judgment.  But  if  the  jurors  are  altogether  ignorant  about 
the  fact,  and  know  nothing  concerning  the  truth,  let  there  be 
associated  with  them  others  who  know  the  truth.  But  if  even 
thus  the  truth  cannot  be  known,  then  it  will  be  requisite  to  speak 
from  belief  and  conscience  at  least.  And  in  which  case  they  do  not 
commit  perjury,  unless  they  go  against  their  conscience,  as  will  be 
explained  more  fully  in  treating  of  convictions.  There  will  be  place 
for  a  certificate,  if  they  have  been  scantily  examined,  or  have 
scantily  answered  to  the  interrogatories,  so  that  they  have  spoken 
obscurely  or  ambiguously,  or  have  been  deceived  by  a  just  error. 
Likewise  if  they  have  spoken  against  the  person  of  the  plaintiff, 
wherefore  he  is  not  entitled  to  an  assise,  or  against  the  person  of  the 
defendant,  that  he  cannot  except:  if  they  have  said  this  falsely, 
they  commit  perjury  and  fall  under  conviction,  because  the  assise 
is  held  after  the  manner  of  an  assise,  which  would  not  be  the  case 
if  it  were  held  after  the  manner  of  a  jury;  as  if  ah  exception  of  this 
kind,  to  wit,  a  cause,  state,  or  convention,  or  condition,  or  such  like 
should  be  raised  by  one  party  against  the  other  party,  and  both 
parties  should  place  themselves  of  their  own  accord  on  this  subject 
upon  a  jury,  when  they  have  perhaps  no  other  proof.  Likewise  if 
the  jurors  should  say  that  the  writ  has  been  wrongly  drawn,  because 
there  has  been  an  error  perhaps  in  the  counties  and  in  the  names 
of  the  vills,  and  the  names  of  the  persons,  or  the  surnames,  or  in  the 
names  of  dignity  or  such  like;  there  will  not  be  much  importance 
in  this,  because  this  objection  has  not  been  taken  by  the  defendant 
by  way  of  exception.  Concerning,  however,  the  names  of  the 
counties  and  the  vills,  it  does  not  much  matter,  provided  it  is  clear 
respecting  the  place,  nor  even  concerning  the  names  of  the  persons, 
provided  it  is  clear  respecting  the  persons.  And  because  the  defend- 
ant might  have  excepted  at  the  commencement  (if  he  wished), 


122  HISTORY  OF  THE  COMMON  LAW 

against  the  writ,  and  he  has  not  excepted,  from  the  time  when  he 
forthwith  put  himself  on  the  assise  dissembling  the  error,  he  has 
approved  the  writ  as  if  it  were  vaHd,  and  even  although  the  jurors 
may  have  erred  in  this  part,  they  do  not  commit  perjury,  since 
they  are  not  consenting  to  a  falsehood,  because  he  who  errs,  docs 
not  consent.  Likewise  as  a  most  diligent  examination  belongs  to 
the  justiciary,  so  a  just  delivery  of  a  sentence  pertains  to  him;  but 
he  ought  before  the  judgment  to- examine  the  fact  and  the  declara- 
tions of  the  jurors,  that  he  may  proceed  securely  to  judgment. 

And  since  the  oath  has  in  itself  three  companions,  truth,  to  wit, 
justice,  and  judgment,  truth  is  to  be  found  in  the  jurors,  justice 
and  judgment  in  the  judge.  It  seems,  however,  that  sometimes 
judgment  pertains  to  the  jurors,  when  they  ought  to  say  upon  their 
oath  (provided,  however,  according  to  their  conscience)  if  such 
an  one  has  disseysed  such  an  one,  or  has  not  disseysed  him,  and 
according  to  this  let  judgment  be  rendered.  But  since  it  belongs 
to  the  judge  to  pronounce  and  to  render  a  just  judgment,  it  will 
behoo\'e  him  diligently  to  deliberate  and  examine,  if  the  declarations 
of  the  jurors  contain  in  themselves  the  truth,  and  if  their  judgment 
has  been  just  or  fatuous,  lest  it  should  happen  that  if  he  as  judge 
should  follow  their  declarations  and  their  judgment,  he  should 
make  a  false  or  a  fatuous  judgment:  for  it  is  a  false  and  fatuous 
judgment,  that  it  might  be  so  a  false  or  fatuous  judgment,  as  will  be 
explained  more  fully  below  in  treating  of  convictions. 

Mirror  of  Justices,  chap.  V,  §  1,  nos.  19,  35,  77,  126,  134,  13G. 

19.  It  is  an  abuse  that  justices  drive  a  lawful  man  to  put  himself 
upon  his  country  when  he  offers  to  defend  himself  against  an  ap- 
prover by  his  body. 

35.  It  is  an  abuse  to  charge  the  jurors  to  make  presentment  of 
wrongs  done  by  neighbour  to  neighbour. 

77.  It  is  an  abuse  that  writs  of  attaint  are  not  granted  in  the 
chancery  without  difficulty  for  the  attaint  of  all  false  jurors,  as  well 
in  all  other  actions,  personal,  real,  or  mixed,  as  in  the  petty  assizes. 

126.  It  is  an  abuse  that  there  is  no  trial  by  battle  in  personal 
actions  as  there  is  in  case  of  felony. 

134.  It  is  an  abuse  to  force  jurors  or  witnesses  to  say  what  they 
do  not  know  by  distress  of  hunger  and  imprisonment,  when  their 
verdict  is  that  they  know  nothing. 

136.  It  is  an  abuse  not  to  examine  the  jurors  until  one  finds  at 
least  two  of  them  in  agreement. 


THE  JURY  123 

Britton,  Bk.  I,  chap.  5.     Nichols's  translation. 

Afterwards  let  the  jurors  be  charged  of  what  fact  they  are  to 
speak  the  truth.  And  then  let  them  go  and  confer  together,  and 
be  kept  by  a  bailiff,  so  that  no  one  speak  to  them ;  and  if  any  one 
does  so,  or  if  there  h,e  any  one  among  them  who  is  not  sworn,  let 
him  be  committed  to  prison,  and  all  the  rest  amerced  for  their  folly 
in  suffering  it. 

10.  If  they  can  not  all  agree  in  one  mind,  let  them  be  separated 
and  examined  why  they  can  not  agree;  and  if  the  greater  part  of 
them  know  the  truth  and  the  other  part  do  not,  judgment  shall  be 
according  to  the  opinion  of  the  greater  part.  And  if  they  declare 
upon  their  oaths,  that  they  know  nothing  of  the  fact,  let  others  be 
called  who  do  know  it;  and  if  he  who  put  himself  on  the  first  in- 
quest will  not  put  himself  on  a  new  jury,  let  him  be  remanded  back 
to  penance  till  he  consents  thereto. 

Anonymous  Case,  Common  Pleas,  1393.  (Year  Book  21  and  22, 
Edw.  I.,  273.)  Thayer's  translation. 
Roubery  (J.  to  the  assise) :  How  say  you  he  is  next  heir?  The 
assize:  Because  he  was  born  and  begotten  of  the  same  father  and 
the  same  mother,  and  his  father  on  his  death-bed  acknowledged  that 
he  was  his  son  and  heir.  Roubery  (J.):  You  shall  tell  us  in 
another  way  how  he  is  next  heir  or  be  shut  up  without  meat  or 
drink  till  tomorrow  morning.  And  then  they  said  he  was  born 
before  the  ceremony,  but  after  the  betrothal. 

Anonymous  Case  Lib.  Assisarum,  41,  11,  1367.  Thayer's  trans- 
lation. 
In  another  assise  before  the  same  justices  at  Northampton,  the 
assise  was  sworn;  and  they  were  all  agreed  but  one,  who  would  not 
agree  with  the  xi,  and  afterwards  they  were  remanded,  and  re- 
mained all  day  and  the  next  day  without  eating  or  drinking,  and 
afterwards  the  justices  demanded  of  him  if  he  would  agree  with 
his  companions,  and  he  said  never,  for  he  would  die  first  in  prison. 
Wherefore  they  took  the  verdict  of  the  xi  and  commanded  him  to 
prison.  And  upon  this  a  day  was  given  in  the  Common  Bench  l^n 
the  matter  of  the  verdict.  Kirketon  (counsel  for  plaintiff)  prayed 
judgment  on  the  verdict,  etc.  Thorpe  (C.  J.)  said  they  were  all 
agreed  that  this  was  not  a  verdict  taken  from  xi  and  that  a  verdict 
could  not  be  taken  from  xi.  But  Kirketon  told  how  Willoughby 
(J.)  in  trespass  took  the  verdict  of  xi  and  sent  the  twelfth  to  prison 


124  HISTORY  OF  THE  COMMON  LAW 

and  the  attaint  was  sued  against  the  xi.  and  also  W.  Thorpe  (J.) 
in  an  assise  of  the  xx  year  of  the  present  king  (1345)  took  verdict 
of  xi.  Thorpe  (C.  J.):  "That  is  no  example  to  us,  for  they  were 
greatly  reproved  for  this."  .  .  .  And  afterwards  by  assent  of 
all  the  justices  it  was  held  that  this  was  not  a  verdict,  wherefore 
judgment  was  that  the  panel  be  quashed  and  null,  and  that  he  that 
was  in  prison  be  delivered.  .  .  .  Note  that  the  justices  said 
that  they  ought  to  have  carried  the  assise  with  them  in  a  cart  until 
they  were  agreed. 

FoRTESCUE,  De  Laudibus  Legum  Angliae,  chaps.  25,  2(3  (about 
1453).  Amos's  translation. 
25.  Whensoever  the  parties  contending  in  the  King's  Courts  are 
come  to  the  issue  of  the  Plea,  upon  the  matter  of  fact,  the  justices 
forthwith,  by  virtue  of  the  King's  writ,  write  to  the  sheriff  of  the 
county,  where  the  fact  is  supposed  to  be,  that  he  would  cause  to  come 
before  them,  at  a  certain  day,  by  them  appointed,  twelve  good 
and  lawful  men  of  the  neighborhood,  where  the  fact  is  supposed, 
who  stand  in  no  relation  to  either  of  the  parties  who  are  at  issue, 
in  order  to  enquire  and  know  upon  their  oaths,  if  the  fact  be  so  as 
one  of  the  parties  alleges,  or  whether  it  be  as  the  other  contends  it, 
with  him.  At  which  day  the  sheriff  shall  make  return  of  the  said 
writ  before  the  same  Justices,  with  a  panel  of  the  names  of  them 
whom  he  had  summoned  for  that  purpose.  In  case  they  appear, 
either  party  may  challenge  the  array,  and  allege  that  the  Sheriff 
had  acted  therein  partially,  and  in  favor  of  the  other  party,  (viz.) 
by  summoning  such  as  are  too  much  parties  in  the  cause  and  not 
indifferent;  which  exception,  if  it  be  found  to  be  true  upon  the  oath 
of  two  men  of  the  same  panel  pitched  on  by  the  Justices,  the  panel 
shall  immediately  be  quashed  and  then  the  Justices  shall  write  to 
the  Coroners  of  the  same  County,  to  make  a  new  panel;  in  case 
that  likewise  should  be  excepted  against,  and  be  made  to  appear  to 
be  corrupt  and  vicious,  this  panel  also  be  quashed.  Then  the  jus- 
tices shall  choose  two  clerks  of  the  court,  or  others  of  the  same 
county,  who,  sitting  in  the  court,  shall  upon  their  oaths,  make  an 
indifferent  panel,  which  shall  be  excepted  to  by  neither  of  the  par- 
ties; but  being  so, impanelled  and  appearing  in  Court,  either  party 
may  except  against  any  particular  person;  as  he  may  at  all  times, 
and  in  all  cases,  by  alleging  that  the  person  so  impanelled  is  of  kin, 
either  by  blood  or  affinity  to  the  other  party;  or  in  some  such  par- 
ticular interest,  as  he  can  not  be  deemed  an  indifferent  person  to 


THE  JURY  125 

pass  between  parties,  of  which  sort  of  exceptions  there  is  so  much 
variety,  as  is  impossible  to  shew  in  a  small  compass;  if  any  one  of 
the  exceptions  be  made  appear  to  the  Court  to  be  true  and  reason- 
able, then  he  against  whom  the  exception  is  taken,  shall  not  be 
sworn,  but  his  name  shall  be  struck  out  of  the  panel ;  in  like  manner 
shall  be  done  with  all  the  rest  of  the  panel ;  until  twelve  be  sworn 
so  indifferent,  as  to  the  event  of  the  cause,  that  neither  of  the 
parties  can  have  reasonable  matter  of  challenge  against  them :  Out 
of  these  twelve,  four  at  least,  shall  be  Hundredors,  dwelling  in  the 
Hundred  where  the  Vill  is  situate,  in  which  the  fact  disputed  is  sup- 
posed to  be,  and  every  one  of  the  Jury  shall  have  lands  or  revenues 
for  the  term  of  his  life,  of  the  yearly  value  at  least  of  twelve  scutes. 
This  method  is  observed  in  all  actions,  criminal,  real  or  personal; 
except  where  in  personal  actions,  the  damages,  or  thing  in  demand, 
shall  not  exceed  forty  marks  English  money:  because,  in  such  like 
actions  of  small  value,  it  is  not  necessary  nor  required  that  the 
Jurors  should  be  able  to  expend  so  much;  but  they  are  required  to 
have  lands  or  revenues,  to  a  competent  value  at  the  discretion  of 
the  Justices;  otherwise,  they  shall  not  be  accepted ;  lest  by  reason  of 
their  meanness  and  poverty,  they  may  be  liable  to  be  easily  bribed, 
or  suborned;  and  in  case,  after  all  exceptions  taken,  so  many  be 
struck  out  of  the  panel,  that  there  does  not  remain  a  sufficient  number 
to  make  up  the  jury,  then  it  shall  be  given  in  charge  to  the  Sheriff, 
by  virtue  of  the  King's  writ,  that  he  add  more  Jurors;  which  is 
usually  and  often  done,  that  the  enquiry  of  the  truth  upon  the  issue 
in  question  may  not  remain  undecided,  for  want  of  Jurors.  This 
is  the  form  how  Jurors,  who  enquire  into  the  truth,  ought  to  be 
returned,  chosen  and  sworn  in  the  King's  Courts  of  Justice;  it 
remains  to  enquire  and  explain,  how  they  ought  to  be  charged  and 
informed  as  to  their  declaration  of  the  truth  of  the  issue  before 
them. 

26.  Twelve  good  men  and  true  men  being  sworn,  as  in  the  manner 
above  related  legally  qualified,  that  is,  having  over  and  besides 
their  movables,  possessions  in  land  sufficient  (as  was  said)  where- 
with to  maintain  their  rank  and  station;  neither  suspected  by  nor 
at  variance  with  either  of  the  parties;  all  of  the  neighborhood ;  there 
shall  be  read  to  them  in  English,  by  the  court,  the  Record  and 
nature  of  the  plea,  at  length,  which  is  depending  between  the  parties ; 
and  the  issue  thereupon  shall  be  plainly  laid  before  them  con- 
cerning the  truth  of  which  those  who  are  sworn  are  to  certify  the 
court;    which  done,  each  of  the  parties,  by  themselves  or  their 


126  HISTORY  OF  THE  COMMON  LAW 

Counsel,  in  presence  of  the  court,  shall  declare  and  lay  open  to 
the  Jury  all  and  singular  the  matters  and  evidences  whereby  they 
think  they  may  be  able  to  inform  the  Court  concerning  the  truth 
of  the  point  in  question;  after  which  each  of  the  parties  has  a 
liberty  to  produce  before  the  Court  all  such  witnesses  as  they 
please,  or  can  get  to  appear  on  their  behalf;  who  being  charged 
upon  their  oaths,  shall  give  in  evidence  all  that  they  know  con- 
cerning the  truth  of  the  fact,  concerning  which  the  parties  are  at 
issue:  and,  if  necessity  so  require,  the  witnesses  may  be  heard  and 
examined  apart,  till  they  shall  have  deposed  all  that  they  have  to 
give  in  evidence,  so  that  what  the  one  has  declared  shall  not  inform 
or  induce  another  witness  of  the  same  side  to  give  his  evidence  in  the 
same  words  or  to  the  very  same  effect.  The  whole  of  the  evidence 
being  gone  through,  the  Jurors  shall  confer  together,  at  their  pleas- 
ure, as  they  shall  think  most  convenient,  upon  the  truth  of  the 
issue  before  them ;  with  as  much  deliberation  and  leisure  as  they  can 
well  desire,  being  all  the  while  in  the  keeping  of  an  officer  of  the 
Court, 'in  a  place  assigned  to  them  for  that  purpose,  lest  anyone 
should  attempt  by  indirect  methods  to  influence  them  as  to  their 
opinion,  which  they  are  to  give  in  the  court.  Lastly,  they  are  to 
return  into  the  court  and  certify  the  Justices  upon  the  truth  of 
the  issue  so  joined  in  the  presence  of  the  parties  (if  they  please  to 
be  present),  particularly  the  person  who  is  plaintiff  in  the  cause; 
what  the  Jurors  shall  so  certify  in  the  Laws  of  England,  is  called 
the  verdict.  In  pursuance  of  which  verdict,  the  Justices  shall 
render  and  form  their  judgment.  Notwithstanding  if  the  party 
against  whom  such  verdict  is  obtained,  complain  that  he  is  thereby 
aggrieved,  he  may  sue  out  a  writ  of  Attaint  both  against  the 
Jury  and  also  against  the  party  who  obtained;  in  virtue  of  which, 
if  it  be  found  upon  the  oath  of  twenty-four  men  (returned  in  manner 
before  observed,  chosen  and  sworn  in  due  form  of  law,  who  ought 
to  have  much  better  estates  than  those  who  were  first  returned 
and  sworn),  that  those,  who  were  of  the  original  panel  and  sworn  to 
try  the  fact,  have  given  a  verdict  contrary  to  evidence,  and  their 
oath;  every  one  of  the  first  Jury  shall  be  committed  to  the  public 
gaol,  their  goods  shall  be  confiscated,  their  possessions  seized  into 
the  king's  hands,  their  habitations  and  houses  shall  be  pulled  down, 
their  wood-lands  shall  be  felled,  their  meadows  shall  be  plowed  up 
and  they  themselves  ever  thenceforward  be  esteemed,  in  the  eye  of 
the  law,  infamous,  and  in  no  case  whatsoever  are  they  to  be  admitted 
to  give  evidence  in  any  Court  or  Record ;  the  party  who  suffered 


THE  JURY  127 

in  the  former  trial,  shall  be  restored  to  everything  they  gave  against 
him,  through  occeision  of  such  their  false  verdict;  and  who  then 
(though  he  should  have  no  regard  to  conscience  or  honesty)  being 
so  charged  upon  his  oath  would  not  declare  the  trulli  from  the  bare 
apprehensions  and  shame  of  so  heavy  a  punishment,  and  the  very 
great  infamy  which  attends  a  contrary  behavior?  And  if,  perhaps, 
one  or  more  among  them  should  be  so  unthinking  or  daring  as  to 
prostitute  their  own  character,  yet  the  rest  of  the  Jurors,  prob- 
ably would  set  a  better  value  on  their  reputations  than  suffer 
either  their  good  name  or  possessions  to  be  destroyed  and  seized 
in  such  a  manner;  now,  is  not  this  method  of  coming  at  the  truth 
better  and  more  effectual  than  that  way  of  proceeding,  which  the 
Civil  Laws  prescribe?  No  one's  cause  or  right  is,  in  this  case,  lost, 
either  by  death  or  failure  of  witnesses.  The  Jurors  returned  are 
well  known,  they  are  not  inferior  in  condition;  neither  strangers, 
nor  people  of  uncertain  characters,  whose  circumstances  or  preju- 
dices may  be  unknown.  The  witnesses  [i.e.,  jurors]  are  of  the 
neighborhood,  able  to  live  of  themselves,  of  good  reputation  and 
unexceptionable  characters,  not  brought  before  the  Court  by  either 
of  the  parties,  but  chosen  and  returned  by  a  proper  officer,  a  worthy, 
disinterested  and  indifferent  person,  and  obliged  under  a  penalty  to 
appear  upon  the  trial.  They  are  well  acquainted  with  all  the  facts, 
which  the  evidences  depose,  and  with  their  several  characters.  What 
need  more  of  words?  There  is  nothing  omitted  which  can  discover 
the  truth  of  the  case  at  issue,  nothing  which  can  in  any  respect  be 
concealed  from,  or  unknown  to  a  Jury,  who  are  so  appointed  and 
returned,  I  say,  as  far  as  it  is  possible  for  the  wit  of  man  to  devise. 

Anonymous  Case,  Common  Pleas,  1514  (1  Dyer,  37b). 

Note,  That  in  Hill.  Term  6.  H.  8.  Rot.  358  it  was  alleged  in  arrest 
of  the  verdict  at  nisi  priiis,  that  the  jurors  eat  and  drank:  and  it 
was  found,  upon  examination,  that  they  were  agreed  before  and 
when  they  came  back  to  give  their  verdict,  they  saw  Rede,  Chief 
Justice,  going  on  the  way  to  see  an  affray,  and  they  followed  him, 
and  in  going,  they  saw  a  cup  and  drank  out  of  it;  and  for  this, 
they  were  fined  each  forty  pence;  and  the  plaintiff  had  judgment 
upon  the  verdict;   and  error  brought  upon  it. 

Statute  of  23  Henry  VIII,  chap.  Ill  (1531). 

An  act  against  perjury  and  untrue  verdicts. 

The  King  our  sovereign  Lord  of  his  most  goodly  and  gracious 
disposition,  calling  to  his  remembrance  how  that  perjury  in  this 


128  HISTORY  OF  THE  COMMON  LAW 

land  is  in  manifold  causes  by  unreasonable  means  detestably  used, 
to  the  disheritance,  and  great  damage  of  many  and  great  numbers 
of  his  subjects  well-disposed,  and  to  the  most  high  displeasure  of 
Almighty  God,  the  good  statutes  against  all  officers  having  return  of 
writs  and  their  deputies,  making  panels  partially  for  rewards  to 
them  given,  against  unlawful  maintainers,  embracers,  and  jurors, 
and  against  jurors  untruly  giving  their  verdict  notwithstanding; 
for  reformation  whereof,  and  forasmuch  as  the  late  noble  King 
Henry  the  Seventh  provided  remedy  for  the  same  by  a  .statute 
made  in  the  eleventh  year  of  his  reign,  which  statute  is  now 
expired : 

n.  Be  it  therefore  now  enacted  by  the  King  our  sovereign  Lord, 
and  the  lords  spiritual  and  temporal,  and  the  commons  in  this 
present  parliament  assembled,  and  by  authority  of  the  same,  That 
upon  every  untrue  verdict  hereafter  given  betwixt  party  and  party, 
in  any  suit,  plaint,  or  demand,  before  any  justices,  or  judges  of 
record,  where  the  thing  in  demand,  and  verdict  thereupon  given, 
extendeth  to  the  value  of  xl.  li.  and  concerneth  not  the  jeopardy 
of  man's  life,  to  the  party  grieved  by  the  same  verdict  shall  have 
a  writ  of  attaint  against  every  person  hereafter  so  giving  an  untrue 
verdict,  and  every  of  them,  and  against  the  party  which  shall 
have  judgment  upon  the  same  verdict.  (2)  and  that  in  the  same 
attaint  there  shall  be  awarded  against  the  petit  jury,  the  party  and 
the  grand  jury,  summons,  resummons,  and  distress  infinite,  which 
grand  jury  shall  be  of  like  number  as  the  grand  jury  is  now  in 
attaint,  and  every  of  them  that  shall  pass  in  the  same,  shall  have 
lands  a^nd  tenements  to  the  value  of  twenty  marks  by  the  year  of 
freehold,  out  of  the  ancient  demean;  (3)  and  upon  the  distress, 
which  shall  be  delivered  of  record  upon  the  same,  open  proclama- 
tion to  be  made  in  the  court  there;  (4)  the  distress  shall  be  awarded 
more  than  fifteen  days  afore  the  return  of  the  said  distress,  and 
every  such  distress  shall  be  made  upon  the  land  of  every  of  the 
said  grand  jury,  as  in  other  distresses  is  and  hath  been  used;  (5) 
and  if  the  said  party  defendant,  or  the  petit  jurors,  or  any  of  them, 
appear  not  upon  the  distress,  then  the  grand  jury  to  be  taken 
against  them  and  every  of  them  that  shall  so  make  default;  (6) 
and  if  any  of  the  said  petit  jury  appear,  then  the  party  complainant 
in  tiiat  behalf  shall  assign  the  false  seremcnt  of  the  first  verdict 
untruly  given,  whereunto  they  of  the  petit  jury  shall  have  no 
answer,  if  they  be  the  same  persons,  and  the  writ  process,  return 
and  assignment  good  and  lawful  except  that  the  demandant  or 


THE  JURY  129 

plaintiff  in  the  same  attaint  hath  afore  been  nonsuit,  or  discon- 
tinued his  suit  of  attaint  taken  for  the  same,  or  hath  for  the  same 
verdict,  in  a  writ  of  attaint,  had  judgment  against  the  said  petit 
jury,  but  only  that  they  made  true  serement,  which  issue  shall 
.be  tried  by  twenty-four  of  the  said  grand  jury;  (7)  and  the  party 
shall  plead  that  they  gave  true  verdict,  or  any  other  matter  which 
shall  be  a  sufficient  bar  of  the  said  attaint;  (8)  and  that  plea  not- 
withstanding the  grand  jury  to  be  taken  without  delay,  to  enquire 
whether  the  first  jury  gave  true  verdict  or  no. 

III.  And  if  they  find  that  the  said  petit  jury  gave  an  untrue 
verdict,  then  every  of  the  said  petit  jury  to  forfeit  xx.  li.  whereof 
the  one  half  shall  be  to  the  King  our  sovereign  Lord,  and  the  other 
half  to  the  party  that  sueth. 

IV.  And  over  that.  That  every  of  the  said  petit  jury  shall  sev- 
erally make  fine  and  ransom,  by  the  discretion  of  the  justices  be- 
fore whom  the  said  false  serement  shall  be  found,  after  their  sev- 
eral offences,  defaults,  and  sufficiency  of  every  of  the  said  petit 
jury;  (2)  and  after  that,  those  of  the  said  petit  jury  so  attainted 
shall  never  after  be  in  any  credence,  nor  their  oath  accepted  in 
any  court;  (3)  and  if  such  plea  as  the  party  pleadeth,  which  is  a 
bar  of  the  said  attaint,  be  found,  or  deemed  against  him  that  so 
pleadeth,  then  the  party  that  so  sueth,  shall  have  judgment  to  be 
restored  to  that  he  lost,  with  his  reasonable  costs  and  damages. 

V.  Foreseen  alway.  That  any  iitlare  in  action  or  cause  per- 
sonal, or  excommengement  pleaded  or  alleged  in  the  party  plaintifif 
or  demandant,  shall  be  taken  but  as  avoid  plea,  and  to  that  he  shall 
not  be  put  to  answer;  (2)  and  that  in  all  the  aforesaid  process 
such  day  shall  be  given  as  in  a  writ  of  dower,  and  none  essoin  or 
protection  to  lie,  nor  to  be  allowed  in  the  same;  (3)  and  if  the 
said  grand  jury  appear  not  upon  the  first  distress  had  against 
them,  so  that  the  jury  for  their  default  do  remain,  he  that  maketh 
default  shall  forfeit  to  the  King  xx.  s.  and  upon  the  second  distress 
xl.  s.  and  after  making  default,  for  every  such  default  v.  li.  and 
like  penalties  and  forfeitures  to  be  against  them,  and  every  of 
them,  that  shall  be  named  in  the  Tales,  as  is  before  expressed 
against  every  of  the  said  grand  jury  aforesaid;  (4)  and  that  for 
and  by  the  death  of  the  party,  or  any  of  the  said  petit  jury,  the 
said  attaint  shall  not  abate,  nor  be  deferred  against  the  remnant, 
as  long  as  two  of  the  said  petit  jury  be  alive. 

VI.  And  if  hereafter  any  false  verdict  be  given  in  any  action, 
suit,  or  demand  afore  any  justice  or  judge  of  record,  of  any  thing 


130  HISTORY  OF  THE  COMMON  LAW 

personal,  as  debt,  trespass,  and  other  like,  which  shall  be  under 
the  value  of  xl.  li.  that  then  the  party  grieved  shall  have  attaint, 
with  such  process  and  pleas  as  is  afore  rehearsed,  and  delays  to  be 
taken  away,  as  is  afore  remembered;  (2)  except  that  in  this  case 
of  attaint,  every  person  of  the  grand  jury  that  may  dispend  v.  marks 
by  the  year  of  freehold  out  of  ancient  demean,  or  is  worth  an  hun- 
dred marks  of  goods  and  chattels,  shall  be  able  to  pass  in  the  same 
attaint.  (3)  And  if  the  petit  jury  be  attainted,  that  then  they  shall 
in  this  case  of  attaint  every  of  them  to  forfeit  v.  li.  whereof  one 
half  shall  be  to  the  King,  and  the  other  half  to  the  party,  after 
the  form  afore  rehearsed,  and  over  that  to  make  fine  and  ransom  by 
the  discretion  of  the  justices,  as  is  aforesaid. 

VII.  And  if  there  be  not  persons  of  such  sufficiency  within  the 
shire  or  place  where  any  of  the  said  attaints  shall  be  taken,  as  may 
pass  into  the  same,  be  it  ordained  by  the  authority  abovesaid, 
That  then  one  Tales  shall  be  awarded  into  the  shire  next  adjoining, 
by  the  discretion  of  the  justices  afore  whom  the  same  attaints 
shall  be  taken,  which  shall  be  warned  to  appear  upon  like  pains 
as  aforesaid,  and  enabled  to  pass  in  the  said  attaints,  as  if  they 
were  dwelling  in  the  shire  where  the  same  attaint  shall  be  taken. 
(2)  And  that  the  same  laws,  action  and  remedy  ordained  by  this 
present  act,  be  kept  for  and  to  all  them  that  shall  be  grieved  by  such 
untrue  verdicts  of  any  inheritance  in  descent,  reversion,  remainder, 
or  of  any  freehold  in  reversion  or  remainder.  (3)  And  if  the  party 
in  attaint  given  by  this  act  be  nonsuit,  or  the  same  discontinue, 
that  then  the  same  party  so  nonsuit,  or  so  discontinuing  the  said 
attaint,  make  fine  and  ransom  by  the  discretion  of  the  justices  afore 
whom  the  said  attaint  shall  be  taken  and  depending. 

VIII.  And  that  all  attaints  hereafter  to  be  taken,  shall  be  taken 
afore  the  King  in  his  bench,  or  afore  the  justices  of  the  common 
place,  and  none  in  other  courts;  (2)  and  that  nisi  prius  shall  be 
granted  by  discretion  of  the  justices  upon  the  distress;  (3)  and 
every  of  the  said  petit  jury  may  appear,  and  answer  by  attorney  in 
the  said  attaint;  (4)  and  that  the  moiety  of  the  said  forfeiture 
of  the  petit  jury  shall  be  levied  to  the  use  of  our  sovereign  Lord 
the  King  by  capias  ad  satisfaciendum,  or  fieri  fac'  or  elegit,  or  by 
action  of  debt  against  every  person  of  the  petit  jury  so  forfeiting, 
and  against  his  executors  and  administrators,  having  then  suffi- 
cient goods  of  their  said  testator  not  administred,  and  the  other 
moiety  shall  by  like  process  be  levied  to  the  use  of  the  party  that 
sueth  any  attaint  given  by  this  act  against  every  of  the  said  petit 


THE  JURY  131. 

jury  and  his  executors  or  administrators,  having  then  sufficiency 
of  goods,  as  is  aforesaid,  not  administred ;  (5)  this  act,  and  execu- 
tion thereof  to  be  had,  and  like  judgment  for  the  party  defendant 
or  tenant,  to  be  discharged  of  restitution,  as  afore  this  present  act 
in  case  of  a  grand  attaint  hath  been  used ;  (6)  and  if  there  be  divers 
plaintiffs  or  demandants  in  attaint,  that  the  nonsuit  or  release  of 
any  of  them  shall  not  be  in  any  wise  hurtful  or  prejudicial  to  the 
residue,  but  that  they  and  every  of  them  in  such  cases  may  be 
summoned  and  severed,  like  as  it  is  used  when  there  be  divers 
demandants  in  actions  xeal. 

Anonymous  Case,  Common  Pleas,  1562  (2  Dyer,  218a). 

A  juror  fined  in  Banc,  who  at  the  assizes  having  eaten  would  not 
agree  with  his  fellows,  though  on  being  sent  back  he  did  agree, 
and  the  verdict  allowed. 

Anonymous  Case,  Common  Pleas,  1579  (3  Dyer,  3646). 

Attaint  brought  in  the  Common  Bench  upon  a  false  verdict 
given  in  B.  R.  upon  an  information  of  usury:  and  the  plaintiff  was 
a  prisoner  in  the  Marshalsea  in  execution  for  the  penalty  s.  as  well 
for  the  plaintiff  the  informer,  as  for  the  Lady  the  Queen.  And  a 
writ  of  mainprise  with  sufficient  surety,  came  from  the  Chancellor 
directed  to  the  Justices  of  C.  B.  to  enlarge  the  prisoner  for  the 
prosecution  of  his  attaint,  and  to  etc.,  if  etc.,  and  a  writ  was  directed 
out  of  C.  B.  to  the  marshal  to  have  the  body  with  the  cause  on  such 
a  day,  etc.  And  the  marshal  did  not  come  upon  the  writ,  where- 
fore he  was  amerced  in  the  last  Term  forty  pounds.  And  now  this 
Term  a  new  writ  was  awarded  on  pain  of  one  hundred  marks, 
directed  to  the  marshal,  etc.,  who  returned,  that  the  prisoner 
was  in  execution  for  the  debt,  recovered  as  well  for  the  Lady  the 
Queen,  as  for  the  party;  and  therefore  without  a  special  precept 
or  warrant  from  the  Court  of  B.  R.  he  could  not,  nor  would  have 
him  in  C.  B.,  etc.  But  yet  at  length  he  produced  the  body,  etc.  .  .  . 
Memorandum,  That  in  the  principal  case  aforesaid  it  was  much 
doubted.  Whether  the  recognizance  of  the  mainpernors  should  be 
made  copulative  or  disjunctive,  s.  to  render  the  body  to  the  prison 
of  the  Lady  the  Queen,  or  to  satisfy  the  sum  in  the  condemnation, 
notwithstanding  the  copulative  words  in  the  writ.  .  .  .  And  at 
length  it  was  resolved  in  this  Term  by  the  Justices,  that  as  well 
for  the  discouragement  of  suitors  in  the  attaint,  who  are  in  execu- 
tion by  the  trial  by  verdict,  as  by  reason  of  the  warrant  to  the 


132  •    HISTORY  OF  THE  COMMON  LAW 

Justices,  which  comprehends  a  copulati\e,  the  better  precedent  is 
to  follow  that.  Wherefore  the  plaintiff  was  committed  to  the 
Fleet  for  the  execution,  without  finding  any  mainprise:  and  by 
the  leave  of  the  Court  he  shall  be  suffered  with  a  keeper  to  go  to 
his  counsel  with  instructions  to  prosecute  the  attaint,  etc.  And  in 
next  Trin.  Term  the  attaint  passed  against  the  plaintiff  affirming  the 
first  verdict. 

Coke  on  Littleton,  155a  (1628). 

''Quod  facial  I2  liberos  et  legates  homines  de  vicineto,  etc.'' 
Albeit  the  words  of  the  writ  be  duodecim,  yet  by  ancient  course 
the  sherife  must  return  24;  and  this  is  for  expedition  of  justice: 
for  if  12  onely  be  returned,  no  man  should  have  a  full  jury  appear, 
or  be  sworn  in  respect  of  challenges,  without  a  tales,  which  should 
be  a  great  delay  of  tryalls.  So  as  in  this  case,  usage  and  antient 
course  maketh  law.  And  it  seemeth  to  me,  that  the  law  in  this 
case  delighteth  herselfe  in  the  number  of  12;  for  there  must  not 
onely  be  12  jurors  for  the  tryall  of  matters  of  fact,  but  12  judges 
of  ancient  time  for  tryall  of  matters  of  law  in  the  Exchequer  Cham- 
ber. Also  for  matters  of  state  there  were  in  ancient  time  twelve 
Counsellors  of  State.  He  that  wageth  his  law  must  have  eleven 
others  with  him,  which  thinke  he  says  true.  And  that  number  of 
twelve  is  much  respected  in  holy  writ,  as  12  apostles,  12  stones,  12 
tribes,  etc. 

Bushel's  Case,  Common  Pleas,  1670.     (Vaughan,  135.) 

The  King's  writ  of  Habeas  Corpus  .  .  .  issued  out  of  this 
court,  directed  to  the  then  sheriffs  of  London,  to  have  the  body  of 
Edward  Bushel,  by  them  detained  in  prison,  together  with  the  day 
and  cause  of  his  caption  and  detention,  on  Friday  then  next  follow- 
ing, before  this  Court,  to  do  and  receive  as  the  court  shall  consider. 

[Vaughan,  C.  J.  delivered  the  opinion  of  the  court  from  which 
the  following  extracts  are  taken:] 

In  the  present  case  it  is  returned  that  the  prisoner,  being  jury- 
man, among  others  charged  at  the  session  court  at  the  old  Baily, 
to  try  the  issue  between  the  King  and  Penn  and  Mead,  upon  the 
indictment  for  assembling  unlawfully  and  tumultuously,  did  against 
the  full  and  manifest  evidence  openly  given  in  court,  accjuit  the 
prisoners  indicted  in  contempt  of  the  King,  etc. 

The  verdict  of  a  jury,  and  evidence  of  a  witness  are  very  differ- 
ent things,  in  the  truth  and  falsehood  of  them.     A  witness  swears 


THE  JURY  133 

but  to  what  he  hath  heard  or  seen,  generally  or  more  largely,  to 
what  hath  fallen  under  his  senses.  But  a  juryman  swears  to  what 
he  can  infer  and  conclude  from  the  testimony  of  such  witnesses, 
by  the  act  and  force  of  his  understanding,  to  be  the  fact  enquired 
after;  which  differs  nothing  in  the  reason,  though  much  in  the 
punishment,  from  what  a  judge,  out  of  various  cases  considered  by 
him,  infers  to  be  the  law  in  the  question  before  him. 

The  judge  .  .  .  cannot  know  the  fact  possibly,  but  from  the 
evidence  which  the  jury  have,  and  consequently  he  cannot  know  the 
matter  of  fact,  nor  punish  the  jury  for  going  against  their  evi- 
dence, when  he  cannot  know  what  their  evidence  is.  It  is  true, 
if  the  jury  were  to  have  no  other  evidence  for  the  fact,  but  what 
is  deposed  in  court,  the  judge  might  know  their  evidence,  and  the 
fact  from  it,  equally  as  they,  and  so  direct  what  the  law  were  in 
the  case;  though  even  when  the  judge  and  jury  might  honestly 
differ  in  the  result  from  the  evidence,  as  well  as  two  judges  may, 
which  often  happens. 

But  the  evidence  which  the  jury  have  of  the  fact  is  much  other 
than  that;  for,  being  returned  of  the  vicinage,  whence  the  cause 
of  action  ariseth,  the  law  supposeth  them  thence  to  have  sufficient 
knowledge  to  try  the  matter  in  issue  (and  so  they  must)  though 
no  evidence  were  given  on  either  side  in  court,  but  to  this  evidence 
the  judge  is  stranger.  2.  They  may  have  evidence  from  their  own 
personal  knowledge,  by  which  they  may  be  assured,  and  some- 
times are,  that  what  is  deposed  in  court,  is  absolutely  false;  but 
to  this  the  judge  is  a  stranger,  and  he  knows  no  more  of  the  fact  than 
he  hath  learned  in  court,  and  perhaps  by  false  depositions,  and 
consequently  knows  nothing.  3.  The  jury  may  know  the  wit- 
nesses to  be  stigmatized  and  infamous,  which  may  be  unknown  to 
the  parties,  and  consequently  to  the  court.  4.  In  many  cases  the 
jury  are  to  have  view  necessarily,  in  many,  by  consent,  for  their 
better  information;  to  this  evidence  likewise  the  judge  is  a  stranger. 
5.  If  they  do  follow  his  direction,  they  may  be  attainted,  and  the 
judgment  reversed  for  doing  that,  which  if  they  had  not  done,  they 
should  have  been  fined  and  imprisoned  by  the  judge  which  is 
unreasonable.  6.  If  they  do  not  follow  his  direction,  and  be  there- 
fore fined,  yet  they  may  be  attainted,  and  so  doubly  punished  by 
distinct  judicatures  for  the  same  offence,  which  the  common  law 
admits  not.  ...  7.  To  what  end  is  the  jury  to  be  returned  out 
of  the  vicinage  whence  the  cause  of  action  ariseth?  To  what  end 
must  hundredors  be  of  the  jury,  whom  the  law  supposeth  to  have 


134  HISTORY  OF  THE  COMMON  LAW 

nearer  knowledge  of  the  fact  than  those  of  the  vicinage  in  general? 
To  what  end  are  they  challenged  so  scrupulously  to  the  array  and 
poll?  To  what  end  must  they  have  such  a  certain  freehold,  and  be 
prohi  &f  legates  homines,  and  not  of  affinity  w^ith  the  parties  con- 
cerned? To  what  end  must  they  ha\-e  in  many  cases  the  view  for 
their  exacter  information  chiefly?  To  what  end  must  they  undergo 
the  heavy  punishment  of  the  villanous  judgment,  if  after  all  this 
they  implicitly  must  give  a  verdict  by  the  dictates  and  authority 
of  another  man,  under  pain  of  fines  and  imprisonment,  w-hen  sworn 
to  do  it  according  to  the  best  of  their  knowledge?  A  man  cannot 
see  by  another's  eye,  nor  hear  by  another's  ear,  no  more  can  a  man 
conclude  or  infer  the  thing  to  be  resolved  by  another's  under- 
standing or  reasoning ;  and  though  the  verdict  be  right  the  jury  give, 
yet  they  being  not  assured  it  is  so  from  their  own  understanding, 
are  forsworn,  at  least  in  foro  conscientiae.  9.  It  is  absurd  a  jury 
should  be  fined  by  the  judge  for  not  going  against  their  evidence, 
when  he  who  fineth  knows  not  what  it  is;  as  where  a  jury  find 
without  evidence  in  court  on  either  side.  So  if  the  jury  find  upon 
their  knowledge,  as  the  course  is  if  the  defendant  plead  solvit  ad 
diem  to  a  bond  proved,  and  offers  no  proof.  The  jury  is  directed 
to  find  for  the  plaintiff,  unless  they  know  payment  w^as  made  of 
their  own  knowledge,  according  to  the  plea.  And  it  is  absurd  to 
fine  a  jury  for  finding  against  their  evidence,  when  the  judge  knows 
but  part  of  it;  for  the  better  and  greater  part  of  the  evidence  may 
be  wholly  unknown  to  him.     [The  jurors  were  discharged.] 

Wood  v.  Gunston,  Upper  Bench,  1655.    (Style,  466.) 

Wood  brought  an  action  upon  the  case  against  Gunston  for 
speaking  of  scandalous  words  of  him ;  and  amongst  other  words, 
for  calling  him  a  Traytor,  and  obteyns  a  verdict  against  him  at  the 
Bar,  wherein  the  jury  gave  1500^  damages.  Upon  the  supposition 
that  the  damages  were  excessive,  and  that  the  jury  did  favour  the 
Plaintiff,  the  Defendant  moved  for  a  new  tryal.  But  Sergeant 
Maynard  opposed  it,  and  said  that  after  a  verdict  the  partiality  of 
the  Jury  ought  not  to  be  questioned,  nor  is  there  any  Presidents 
for  it  in  our  Books  of  the  Law,  and  it  would  be  of  dangerous  conse- 
quence if  it  should  be  suffered,  and  the  greatness  of  the  damages 
given  can  be  no  cause  for  a  new  tryal,  but  if  it  were,  the  damages 
are  not  here  excessive,  if  the  words  spoken  be  well  considered,  for 
they  tend  to  take  away  the  Plaintiff's  estate,  and  his  life.  W' indham, 
on  the  other  side,  pressed  for  a  new  tryal,  and  said  it  was  a  packed 


THE  JURY  135 

business,  else  there  could  not  have  been  so  great  damages,  and 
the  Court  hath  power  in  extraordinary  cases,  such  as  this  is,  to 
grant  a  new  tryal.  Glyn,  Chief  Justice.  It  is  in  the  discretion 
of  the  Court  in  some  cases  to  grant  a  new  tryal,  but  this  must  be  a 
judicial,  and  not  an  arbitrary,  discretion  and  it  is  frequent  in  our 
Books  for  the  Court  to  take  notice  of  miscarriages  of  Juries,  and  to 
grant  new  tryals  upon  them,  and  it  is  for  the  people's  benefit  that 
it  should  be  so,  for  a  Jury  may  sometimes  by  indirect  dealings  be 
moved  to  side  with  one  party  and  not  be  indifferent  betwixt  them, 
but  it  cannot  be  so  intended  of  the  Court;  wherefore  let  there  be 
a  new  tryal  the  next  term,  and  the  Defendant  shall  pay  full  costs, 
and  the  judgment  to  be  upon  this  Verdict  to  stand  for  security  to 
pay  what  shall  be  recovered  upon  the  next  verdict. 

HixT  V.  Goats,  King's  Bench,  1615.    (1  Rolle,  257.) 

Sir  Baptist  Hixt  had  judgment  in  the  Common  Pleas  against 
Goats  and  Fleetwood,  and  now  on  writ  of  error  it  was  assigned  for 
error  that  the  covenant  alleged  was  that  whereas  a  bargain  was 
made  for  certain  land  between  the  plaintiff  and  defendants,  the 
defendant  covenanted  that  if  there  were  not  so  many  acres  upon 
the  measure  as  the  defendant  had  said  to  the  plaintiff  that  the  land 
sold  amounted  to,  that  he  would  repay  11  /.  for  each  acre  which 
lacked  of  the  number,  and  alleged  that  upon  the  measure  so  many 
acres  in  certain  were  lacking  as  amounted  at  11  /.  an  acre  to 
700  /.,  and  the  issue  was  whether  they  were  lacking,  and  the  jury 
found  for  the  plaintiff  and  gave  400  /.  damages.  Croke  (of  counsel 
for  plaintiff  in  error) :  It  seems  that  this  issue  is  repugnant,  for 
of  necessity  if  so  many  acres  were  lacking  as  the  plaintiff  alleged, 
they  ought  to  find  700  /.  damages,  and  if  they  do  not  find  that  so 
many  are  lacking,  the  verdict  ought  not  to  be  found  against  the 
plaintiff.  Coke  (C.  J.):  It  seems  to  be  good  enough,  for  there 
may  be  divers  reasons  why  in  equity  they  ought  not  to  give  so  much 
damage  as  this  amount,  for  it  seems  here  that  the  jurors  are  chan- 
cellors, and  it  seems  such  verdict  is  good  in  an  action  on  the  case 
because  only  damages  are  to  be  recovered,  but  it  is  otherwise  where 
a  debt  is  to  be  recovered,  and  judgment  was  affirmed  by  the  court 
as  to  this  point. 

Ravencroft  v.  Eyles,  Common  Pleas,  1766.    (2  Wilson,  294.) 
Extract  from  the  opinion  of  Wilmot,  C.  J. 
The  quantum  of  damages  is  nothing  to  the  purpose,  for  if  the 
jury  had  power  in  this  case  to  give  damages,  we  must  now  take  it 


136  HISTORY  OF  THE  COMMON  LAW 

that  they  have  done  right;  and  I  am  of  the  opinion  that  the  jury 
were  not  confined  to  give  the  exact  damages  in  the  final  judgment, 
but  had  a  power  and  discretion  to  assess  what  damages  they  thought 
proper,  for  this  being  an  action  upon  the  case,  the  damages  were 
totally   uncertain   and   at   large. 

[This  was  an  action  against  a  sheriff  for  permitting  an  impris- 
oned debtor  to  escape,  so  that  the  plaintiff  lost  the  amount  of  his 
judgment  against  the  debtor.] 

Alder  v.  Keighley,  Exchequer  of  Pleas,  1846.  (15  Meeson 
&  Welsby,  117.) 
The  learned  judge  in  summing  up,  directed  the  jury  that  .  .  . 
the  assignees  .  .  .  were  entitled  to  recover  the  600  /.  minus  the 
100  I.  and  the  discount  .  .  .  Pollock.  C.  B.  .  .  .  The  question 
is,  what  was  the  contract,  and  was  it  broken  by  the  defendant? 
No  doubt  all  questions  of  damages,  are,  strictly  speaking,  for 
the  jury;  and  however  clear  and  plain  may  be  the  rule  of  law  on 
which  the  damages  are  to  be  found,  the  act  of  finding  is  for  them. 
But  there  are  certain  established  rules  according  to  which  they 
ought  to  find;  and  here  there  is  a  clear  rule  —  that  the  amount 
which  would  have  been  received  if  the  contract  had  been  kept,  is 
the  measure  of  the  damage  if  the  contract  is  broken. 

Sedgwick,  Damages,  201-2.    (1  Ed.  1847.) 

It  is  in  truth  but  slowly,  and  at  comparatively  a  recent  period, 
that  the  jury  has  relinquished  its  control  over  even  actions  of  con- 
tract, and  that  any  approach  has  been  made  to  a  fixed  and  legal 
measure  of  damage.  But  by  degrees  the  salutary  principle  has  been 
recognized,  and  it  is  now  well  settled,  that  in  all  actions  of  contract 
.  .  .  and  in  all  cases  of  tort  where  no  e\il  moti\-e  is  charged,  the 
amount  of  compensation  is  to  be  regulated  by  the  direction  of  the 
court,  and  the  jury  cannot  substitute  their  vague  and  arbitrary 
discretion  for  the  rules  which  the  law  la}'s  down. 

WiGMORE,   Evidence,   I-,    §  8. 

The  details  of  the  history  of  the  rules  of  evidence  can  best  be 
examined  while  considering  the  particular  rules  each  in  its  place. 
But  it  is  worth  while  to  notice  here  summarily  the  historical  devel- 
opment of  the  general  system  in  its  main  features,  and  the  relative 
chronology  of  the  different  rules.  Some  notion  can  thus  be  ob- 
tained of  the  influence  of  certain  external  circumstances  on  the 


THE  JURY  137 

rules  at  large,  and  of  some  of  the  individual  principles  upon  the 
others. 

The  marked  divisions  of  chronology,  for  our  law  of  evidence, 
may  be  said  to  be  seven,  —  from  primitive  times  to  1200  A.D., 
thence  to  1500,  thence  to  1700,  to  1790,  to  1830,  to  1860,  and  to  the 
present  time: 

(1)  A.  D.  700-1200.  Up  to  the  period  of  the  1200s,  the  history  of 
the  rules  of  evidence,  In  the  modern  sense,  Is  like  the  chapter  upon 
ophidians  in  Erin;  for  there  were  none.  Under  the  primitive 
practices  of  trial  by  ordeal,  by  battle,  and  by  compurgation,  the 
proof  is  accomplished  by  a  judicium  Dei,  and  there  Is  no  room  for 
our  modern  notion  of  persuasion  of  the  tribunal  by  the  credibility 
of  the  witnessses;  for  the  tribunal  merely  verified  the  observance 
of  the  due  formalities,  and  did  not  conceive  of  these  as  directly 
addressed  to  their  own  reasoning  powers.  Nevertheless,  a  few 
marks.  Indelibly  made  by  these  earlier  usages,  were  left  for  a  long 
time  afterwards  in  our  law.  The  summoning  of  attesting  wit- 
nesses to  prove  a  document,  the  quantitative  effect  of  an  oath,  the 
conclusiveness  of  a  seal  in  fixing  the  terms  of  a  documentary  trans- 
action, the  necessary  production  of  the  original  of  a  document  — 
these  rules  all  trace  a  continuous  existence  back  to  this  earliest 
time,  although  they  later  took  on  different  forms  and  survived 
for  reasons  not  at  all  connected  with  their  primitive  theories. 

(2)  A.  D.  1200-1500.  With  the  full  advent  of  the  jury.  In  the 
1200s,  the  general  surroundings  of  the  modern  system  are  pre- 
pared ;  for  now  the  tribunal  Is  to  determine  out  of  Its  own  conscious 
persuasion  of  the  facts,  and  not  merely  by  supervising  external 
tests.  The  change  is  of  course  gradual;  and  trial  by  jury  Is  as  yet 
only  one  of  several  competing  methods ;  but  at  least  a  system  for 
the  process  of  persuasion  becomes  possible.  In  this  period,  no  new 
specific  rules  seem  to  have  sprung  up.  The  practice  for  attesting 
witnesses,  oaths,  and  documentary  originals  Is  developed.  The 
rule  for  the  conclusiveness  of  a  sealed  writing  is  definitely  estab- 
lished. But  during  these  three  centuries  the  general  process  of 
pleading  and  procedure  is  only  gradually  differentiated  from  that 
of  proof, —  chiefly  because  the  jurors  are  as  yet  relied  upon  to 
furnish  In  themselves  both  knowledge  and  decision;  for  they  are 
not  commonly  caused  to  be  informed  by  witnesses,  in  the  modern 
sense. 

(3)  A.  D.  1500-1700.  By  the  1500s,  the  constant  employment 
of  witnesses,  as  the  jury's  chief  source  of  Information,  brings  about 


138  HISTORY  OF  THE  COMMON  LAW 

a  radical  change.  Here  enter,  very  directly,  the  possibilities  of 
our  modern  system.  With  all  the  emphasis  gradually  cast  upon 
the  witnesses,  their  words  and  their  documents,  the  whole  ques- 
tion of  admissibility  arises.  One  first  great  consequence  is  the 
struggle  between  the  numerical  or  quantitative  system,  which 
characterized  the  canon  law  and  still  dominated  all  other  methods 
of  proof,  and  the  unfettered,  systemless  jury  trial;  and  it  was  not 
for  two  centuries  that  the  numerical  system  was  finally  repulsed. 
Another  cardinal  question  now  necessarily  faced  was  that  of  the 
competency  of  witnesses;  and  by  the  end  of  the  1500s,  the  foun- 
dations were  laid  for  all  the  rules  of  disqualification  which  pre- 
vailed thenceforward  for  more  than  two  centuries,  and  in  part 
still  remain.  At  the  same  time,  and  chiefly  from  a  simple  failure 
to  ditTerentiate,  most  of  the  rules  of  privilege  and  privileged  com- 
munication were  thereby  brought  into  existence,  at  least  in  embryo. 
The  rule  for  attorneys,  which  alone  stood  upon  its  own  ground, 
also  belongs  here,  though  its  reasons  were  newly  conceived  after 
the  lapse  of  a  century.  A  third  great  principle,  the  right  to  have 
compulsory  attendance  of  witnesses,  marks  the  very  beginning  of 
this  period.  Under  the  primitive  notions,  this  all  rested  upon 
the  voluntary  action  of  one's  partisans;  the  calling  of  compurga- 
tors and  documentary  attestors,  under  the  older  methods  of  trial, 
was  in  effect,  a  matter  of  contract.  But  as  soon  as  the  chief  reliance 
came  to  be  the  witnesses  to  the  jurors,  and  the  latter  ceased  to  act 
on  their  own  knowledge,  the  necessity  for  the  provision  of  such 
information,  compulsorily  if  not  otherwise,  became  immediately 
oljvious.  The  idea  progressed  slowly;  it  was  enforced  first  for  the 
Crown,  next  for  civil  parties;  and  not  until  the  next  period  was 
it  conceded  to  accused  persons.  Thus  was  laid  down  indirectly 
the  general  principle  that  there  is  no  privilege  to  refuse  to  be  a  wit- 
ness; to  which  the  other  rules,  abo\'e  mentioned,  subsequently 
became  contrasted  as  exceptions.  A  fourth  important  principle, 
wholly  independent  in  origin,  here  also  arose  and  became  fixed  by 
the  end  of  this  period , —  the  pri\'ilege  against  self-crimination.  The 
creature,  under  another  form,  of  the  canon  law,  in  which  it  had  a 
long  history  of  its  own,  it  was  transferred,  under  stress  of  politi- 
cal turmoil,  into  the  common  law,  and  thus,  by  a  singular  contrast, 
came  to  be  a  most  distinctive  feature  of  our  trial  system. 
About  the  same  period  —  the  end  of  the  1600s  —  an  equally  dis- 
tinctive feature,  the  rule  against  using  an  accused's  character, 
became  settled.     Finally,  the  "parol  evidence"  rule  enlarged  its 


THE  JURY  139 

scope,  and  came  to  include  all  writings  and  not  merely  sealed  docu- 
ments; this  development,  and  the  enactment  of  the  statute  of 
frauds  and  perjuries,  represent  a  special  phase  of  thought  in  the 
end  of  this  period.  It  ends,  however,  rather  with  the  Restoration 
of  1660  than  with  the  Revolution  of  1688,  or  the  last  years  of  the 
century;  for  the  notable  feature  of  it  is  that  the  regenerating  re- 
sults of  the  struggle  against  the  arbitrary  methods  of  James  I  and 
Charles  I  began  to  be  felt  as  early  as  the  return  of  Charles  II.  The 
mark  of  the  new  period  is  seen  at  the  Restoration.  Justice,  on  all 
hands,  then  begins  to  mend.  Crudities  which  Matthew  Hale 
permitted,  under  the  Commonwealth,  Scroggs  refused,  under  James 
II.  The  pri\dlege  against  self-crimination,  the  rule  for  two  witnesses 
in  treason,  and  the  character  rule  — -  three  landmarks  of  our  law 
of  evidence  —  find  their  first  full  recognition  in  the  last  days  of 
the  Stuarts. 

(4)  A.  D.  1700-1790.  Two  circumstances  now  contributed  in- 
dependently to  a  further  development  of  the  law  on  two  opposite 
sides,  its  philosophy  and  its  practical  efficiency.  On  the  one  hand 
the  final  establishment  of  the  right  of  cross-examination  by  counsel, 
at  the  beginning  of  the  1700s,  gave  to  our  law  of  evidence  the  dis- 
tinction of  possessing  the  most  efficacious  expedient  ever  invented 
for  the  extraction  of  truth  (although,  to  be  sure,  like  torture, — 
that  great  instrument  of  the  continental  system, —  it  is  almost 
equally  powerful  for  the  creation  of  false  impressions).  A  notable 
consequence  was  that  by  the  multiplication  of  oral  interrogation 
at  trials  the  rules  of  evidence  were  now  developed  in  detail  upon 
such  topics  as  naturally  came  into  new  prominence.  All  through 
the  1700s  this  expansion  proceeded,  though  slowly.  On  the  other 
hand,  the  already  existing  material  began  now  to  be  treated  in 
doctrinal  form.  The  first  treatise  on  the  law  of  evidence  was  that 
of  Chief  Baron  Gilbert,  not  published  till  after  his  death  in  1726. 
About  the  same  time  the  abridgments  of  Bacon  and  of  Comyns 
gave  many  pages  to  the  title  of  Evidence;  but  no  other  treatise 
appeared  for  a  quarter  of  a  century,  when  the  notes  of  Mr.  J. 
Bathurst  (later,  Lord  Chancellor)  were  printed,  under  the  signi- 
ficant title  of  the  "Theory  of  Evidence."  But  this  propounding 
of  a  system  was  as  yet  chiefly  the  natural  culmination  of  the  prior 
century's  work,  and  was  independent  of  the  expansion  of  prac- 
tice now  going  on.  In  Gilbert's  book,  for  example,  even  in  the  fifth 
edition  of  1788,  there  are  in  all,  out  of  the  three  hundred  pages, 
less  than  five  concerned  with  the  new  topics  brought  up  by  the 


140  HISTORY  OF  THE  COMMON  LAW 

practice  of  cross-examination ;  in  Bathurst's  treatise  (by  this  time 
embodied  in  his  nephew  BuUer's  "Trials  at  Nisi  Prius")  the  num- 
ber is  hardly  more;  Blackstone's  Commentaries,  in  1768,  other- 
wise so  full,  are  here  equally  barren.  The  most  notable  result  of  these 
disquisitions,  on  the  theoretical  side,  was  the  establishment  of 
the  "best  evidence"  doctrine,  which  dominated  the  law  for  nearly 
a  century  later.  But  this  very  doctrine  tended  to  preserve  a  gen- 
eral consciousness  of  the  supposed  simplicity  and  narrowness  of 
compass  of  the  law  of  evidence.  As  late  as  the  very  end  of  the 
century,  Mr.  Burke  could  argue  down  the  rules  of  evidence  when 
attempted  to  be  enforced  upon  the  House  of  Lords  at  Warren 
Hastings'  trial,  and  ridicule  them  as  petty  and  inconsiderable. 
But,  none  the  less,  the  pi"actice  had  materially  expanded  during 
his  lifetime.  In  this  period,  besides  the  rules  for  impeachment 
and  corroboration  of  witnesses  (which  were  due  chiefly  to  the  de- 
velopment of  cross-examination),  are  to  be  reckoned  also  the  origins 
of  the  rules  for  confessions,  for  leading  questions,  and  for  the  order 
of  testimony.  The  various  principles  affecting  documents  — 
such  as  the  authorization  of  certified  (or  office)  copies  and  the  con- 
ditions dispensing  from  the  production  of  originals  —  now  also 
received  their  general  and  final  shape. 

(5)  A.  D.  1790-1830.  The  full  spring-tide  of  the  system  had 
now  arrived.  In  the  ensuing  generation  the  established  principles 
began  to  be  developed  into  rules  and  precedents  of  minutiae  re- 
latively innumerable  to  what  had  gone  before.  In  the  Nisi  Prius 
reports  of  Pcake,  Espinasse,  and  Campbell,  centering  around  the 
quarter-century  from  1790  to  1815,  there  are  probably  more  rulings 
upon  evidence  than  in  all  the  prior  reports  of  two  centuries.  In 
this  development  the  dominant  influence  is  plain;  it  was  the  in- 
crease of  printed  reports  of  Nisi  Prius  rulings.  This  was  at  first 
the  cause,  and  afterwards  the  self-multiplying  effect,  of  the  de- 
tailed development  of  the  rules.  Hitherto,  upon  countless  details, 
the  practice  had  varied  greatly  on  the  different  circuits;  more- 
over, it  had  rested  largely  in  the  memory  of  the  experienced  leaders 
of  the  trial  bar  and  in  the  momentary  discretion  of  the  judges. 
In  both  respects  it  therefore  lacked  fixity,  and  was  not  amenable 
to  tangible  authority.  These  qualities  it  now  rapidly  gained. 
As  soon  as  Nisi  Prius  reports  multiplied  and  became  available  to 
all,  the  circuits  must  be  reconciled,  the  rulings  once  made  and 
recorded  must  be  followed,  and  these  precedents  must  be  open 
to  the  entire  profession  to  be  invoked.     There  was,  so  to  speak, 


THE  JURY  141 

a  sudden  precipitation  of  all  that  had  hitherto  been  suspended 
in  solution.  This  effect  began  immediately  to  be  assisted  and 
emphasized  by  the  appearance  of  new  treatises,  summing  up  the 
recent  acquisitions  of  precedent  and  practice.  In  nearly  the  same 
year,  Peake,  for  England  (1801),  and  McNally,  for  Ireland  (1802), 
printed  small  volumes  whose  contents,  as  compared  with  those 
of  Gilbert  and  BuUer,  seem  to  represent  almost  a  different  system, 
so  novel  were  their  topics.  In  1806  Evans'  Notes  to  Pothier  on 
Obligations  was  made  the  vehicle  of  the  first  reasoned  analysis 
of  the  rules.  In  this  respect  it  was  epoch-making;  and  its  author 
in  a  later  time  once  quietly  complained  that  its  pages  were  "more 
often  quoted  than  acknowleded."  The  room  for  new  treatises 
was  rapidly  enlarging.  Peake  and  McNally,  as  handbooks  of  prac- 
tice, were  out  of  date  within  a  few  years,  and  no  new  editions  could 
cure  them.  In  1814,  and  then  in  1824,  came  Phillipps,  and  Starkie, 
—  in  method  combining  Evans'  philosophy  with  Peake's  strict 
reflection  of  the  details  of  practice.  There  was  now  indeed  a  sys- 
tem of  evidence,  consciously  and  fully  realized.  Across  the  water 
a  similar  stage  had  been  reached.  By  a  natural  interval  Peake's 
treatise  was  balanced,  in  1810,  by  Swift's  Connecticut  book,  while 
Phillipps  and  Starkie  (after  a  period  of  sufficiency  under  American 
annotations)  were  replaced  by  Greenleaf's  treatise  of  1842. 

(6)  A.  D.  1830-1860.  Meantime,  the  advance  of  consequences 
was  proceeding,  by  action  and  reaction.  The  treatises  of  Peake 
and  Phillipps,  by  embodying  in  print  the  system  as  it  existed,  at 
the  same  time  exposed  it  to  the  light  of  criticism.  It  contained, 
naturally  enough,  much  that  was  merely  inherited  and  traditional, 
much  that  was  outgrown  and  outworn.  The  very  efforts  to  supply 
explicit  reasons  for  all  this  made  it  the  easier  to  puncture  the 
insufficient  reasons  and  to  impale  the  inconsistent  ones.  This  be- 
came the  office  of  Bentham.  Beginning  with  the  first  publication, 
in  French,  of  his  Theory  of  Judicial  Evidence,  in  1818,  the  influence 
of  his  thought  upon  the  law  of  evidence  gradually  became  supreme. 
While  time  has  only  ultimately  vindicated  and  accepted  most  of 
his  ideas  (then  but  chimeras)  for  other  practical  reforms,  and 
though  some  still  remain  untried,  the  results  of  his  proposals  in  this 
department  began  almost  immediately  to  be  achieved.  Mature 
experience  constantly  inclines  us  to  believe  that  the  best  results 
on  human  action  are  seldom  accomplished  by  sarcasm  and  invec- 
tive; for  the  old  fable  of  the  genial  sun  and  the  raging  wind  repeats 
itself.     But  Bentham's  case  must  always  stand  out  as  a  proof  that 


142  HISTORY  OF  THE  COMMON  LAW 

sometimes  the  contrary  is  true,  —  if  conditions  are  meet.  No 
one  can  say  how  long  our  law  might  have  waited  for  regeneration, 
if  Bentham's  diatribes  had  not  lashed  the  community  into  a  sense 
of  its  shortcomings.  It  is  true  that  he  was  particularly  favored 
by  circumstances  in  two  material  respects  —  the  one  jjersonal,  the 
other  broadly  social.  He  gained,  among  others,  two  incomparable 
disciples,  who  served  as  a  fulcrum  from  which  his  lever  could 
operate  directly  upon  legislation.  Henry  Brougham  and  Thomas 
Denman  combined  with  singular  felicity  the  qualities  of  leadership  in 
the  technical  arts  of  their  profession  and  of  energy  for  the  abstract 
principles  of  progress.  Holding  the  highest  offices  of  justice,  and 
working  through  a  succession  of  decades,  they  were  enabled,  within 
a  generation,  to  bring  Bentham's  ideas  directly  into  influence 
upon  the  law.  One  who  reads  the  great  speech  of  Brougham,  on 
February  7,  1828,  on  the  state  of  the  common  law  courts,  and  the 
reports  of  Denman  and  his  colleagues,  in  1852  and  1853,  on  the 
common  law  procedure,  is  perusing  epoch-inaking  deliverances 
of  the  century.  The  other  circumstance  that  favored  Bentham's 
causes  was  the  radical  readiness  of  the  times.  The  French  Revo- 
lution had  acted  in  England;  and  as  soon  as  the  Napoleonic  wars 
were  over,  the  influence  began  to  be  felt.  One  part  of  public 
opinion  was  convinced  that  there  must  be  a  radical  change;  the 
other  and  dominant  part  felt  assured  that  if  the  change  did  not  come 
as  reform,  it  would  come  as  revolution;  and  so  the  reform  was 
gi\-en,  to  prevent  the  revolution.  In  a  sense,  it  did  not  much 
matter  to  them  where  the  reform  came  about  —  in  the  economic, 
or  the  political,  or  the  juridical  field  —  if  only  there  was  reform. 
At  this  stage,  Bentham's  denouncing  voice  concentrated  attention 
on  the  subject  of  pul)lic  justice  —  criminal  law  and  civil  procedure; 
and  so  it  was  here  that  the  movement  was  felt  among  the  first. 
As  a  matter  of  chronological  order,  the  first  considerable  achieve- 
ments were  in  the  field  of  criminal  law,  beginning  in  1820,  under 
Romilly  and  Mackintosh;  then  came  the  political  uphea\al  of  the 
Reform  Bill,  in  1832,  under  Russell  and  Grey;  next,  the  economic 
regeneration,  beginning  with  Huskisson  and  culminating  with  Peel 
in  the  Corn  Law  Repeal  of  1846.  Not  until  the  Common  Law 
Procedure  Acts  of  1852  and  1854  were  large  and  final  results  achieved 
for  the  Benthamic  ideas  in  procedure  and  exidence.  But  over  the 
whole  preceding  twenty  years  had  been  spread  initial  and  instruc- 
tive refonns.  Brougham's  speech  of  February  7,  1828,  was  the 
real  signal  for  the  beginning  of  this  epoch  —  a  beginning  which 


THE  JURY  143 

would  doubtless  have  culminated  more  rapidly  if  urgent  economic 
and  political  crises  had  not  intervened  to  absorb  the  legislative 
energy. 

In  the  United  States,  the  counterpart  of  this  period  came  only 
a  little  later.  It  seems  to  have  begun  all  along  the  line,  and  was 
doubtless  inspired  by  the  accounts  of  progress  made  and  making  in 
England,  as  well  as  by  the  legislative  efforts  of  David  Dudley  Field, 
in  the  realm  of  civil  procedure.  The  period  from  1840  to  1870 
saw  the  enactment,  in  the  various  jurisdictions  in  this  country,  of 
most  of  the  reformatory  legislation  which  had  been  carried  or 
proposed  in  England. 

(7)  A.  D.  1860.  After  the  Judicature  Act  of  1875,  and  the  Rules 
of  Court  (of  1883)  which  under  its  authority  were  formulated,  the 
law  of  evidence  in  England  attained  rest.  It  is  still  overpatched 
and  disfigured  with  multiplicitous  fragmentary  statutes,  especially 
for  documentary  evidence.  But  it  seems  to  be  harmonious  with  the 
present  demands  of  justice,  and  above  all  to  be  so  certain  and  settled 
in  its  acceptance  that  no  further  detailed  development  is  called  for. 
It  is  a  substratum  of  the  law  which  comes  to  light  only  rarely  in  the 
judicial  rulings  upon  practice. 

Far  otherwise  in  this  country.  The  latest  period  in  the  develop- 
ment of  the  law  of  evidence  is  marked  by  a  temporary  degeneracy. 
Down  to  about  1870,  the  established  principles,  both  of  common 
law  rules  and  of  statutory  reforms,  were  re-stated  by  our  judiciary 
in  a  long  series  of  opinions  which,  for  careful  and  copious  reasoning, 
and  for  the  common  sense  of  experience,  were  superior  (on  the 
whole)  to  the  judgments  uttered  in  the  native  home  of  our  law. 
Partly  because  of  the  lack  of  treatises  and  even  of  reports  —  partly 
because  of  the  tendency  to  question  imported  rules  and  therefore 
to  defend  on  grounds  of  principle  and  policy  whatever  could  be 
defended  —  partly  because  of  the  moral  obligation  of  the  judiciary, 
in  new  communities,  to  vindicate  by  intellectual  effort  its  right  to 
supremacy  over  the  bar  —  and  partly  also  because  of  the  advent, 
coincidentally,  of  the  same  rationalizing  spirit  which  led  to  the 
reformatory  legislation  —  this  very  necessity  of  restatement  led 
to  the  elaboration  of  a  finely  reasoned  system.  The  "mint,  anise 
and  cummin"  of  mere  precedent  were  not  unduly  revered.  There 
was  always  a  reason  given  —  even  though  it  might  not  always 
be  a  worthy  reason.  The  pronouncement  of  Bentham  came  near 
to  be  exemplified,  that  "so  far  as  evidence  is  concerned,  the 
English  practice  needs  no  improvement  but  from  its  own  stores. 


144  HISTORY  OF  THE  COMMON  LAW 

Consistency,  consistency,  is  the  one  thing  needful.  Preserve  consis- 
tency, and  perfection  is  accompHshed." 

But  the  newest  States  in  time  came  to  be  added.  New  reports 
spawned  a  multifarious  mass  of  new  rulings  in  fifty  jurisdictions  — 
each  having  theoretically  an  equal  claim  to  consideration.  The 
liberal  spirit  of  choosing  and  testing  the  better  rule  degenerated  into 
a  spirit  of  empiric  eclecticism  in  which  all  things  could  be  cjues- 
tioned  and  re-questioned  ad  infinitum.  The  partisan  spirit  of  the 
bar,  contesting  desperately  on  each  trifle,  and  the  unjust  doctrine 
of  new  trials,  tempting  counsel  to  push  up  to  the  appellate  courts 
upon  every  ruling  of  evidence,  increased  this  tendency.  Added  to 
this  was  the  supposed  necessity  in  the  newer  jurisdictions  of  decid- 
ing over  again  all  the  details  that  had  been  long  settled  in  the  older 
ones.  Here  the  lack  of  local  traditions  at  the  bar  and  of  self- 
confidence  on  the  bench  led  to  the  tedious  re-exposition  of  countless 
elementary  rules.  This  lack  of  peremptoriness  on  the  supreme 
bench,  and  (no  less  important)  the  marked  separation  of  personality 
between  courts  of  trial  and  courts  of  final  decision,  led  also  to  the 
multifarious  heaping  up,  within  each  jurisdiction,  of  rulings  upon 
rulings  involving  identical  points  of  decision.  This  last  phe- 
nomenon may  be  due  to  many  subtly  conspiring  causes.  But  at 
any  rate,  the  fact  is  that  in  numerous  instances,  and  in  eilmost 
every  jurisdiction,  recorded  decisions  of  Supreme  Courts  upon  pre- 
cisely the  same  rule  and  the  same  application  of  it  can  be  reckoned 
by  the  dozens  and  scores.  This  wholly  abnormal  state  of  things  — 
in  clear  contrast  to  that  of  the  modern  English  epoch  —  is  the 
marked  feature  of  the  present  period  of  development  in  our  own 
country. 

Of  the  change  that  is  next  to  come,  and  of  the  period  of  its 
arrival,  there  seem  as  yet  to  be  no  certain  signs.  Probably  it  will 
come  either  in  the  direction  of  the  present  English  practice  — ■  by 
slow  formation  of  professional  habits  —  or  in  the  direction  of  at- 
tempted legislative  relief  from  the  mass  of  bewildering  judicial 
rulings  —  by  a  concise  code.  The  former  alone,  might  suffice. 
But  the  latter  will  be  a  false  and  futile  step,  unless  it  is  founded 
upon  the  former;  and  in  any  event  the  danger  is  that  it  will  be 
premature.  A  code  fixes  error  as  well  as  truth.  No  code  can  be 
worth  casting,  until  there  has  been  more  explicit  discussion  of  the 
reasons  for  the  rules  and  more  study  of  them  from  the  point  of 
view  of  synthesis  and  classification.  The  time  must  first  come 
when,    in    the    common    understanding    and    acceptance    of    the 


THE  SUPREMACY  OF  LAW  145 

profession,  "every  rule  is  referred  articulately  and  definitely  to  an 
end  which  it  subserves,  and  when  the  grounds  for  desiring  that 
end  are  stated,  or  are  ready  to  be  stated,  in  words." 

Qi)     The  Supremacy  of  Law  ^ 

Dicey,  Law  of  the  Constitution,  171. 

Two  features  have  at  all  times  since  the  Norman  Conquest  char- 
acterized the  political  institutions  of  England. 

The  first  of  these*  features  is  the  omnipotence  or  undisputed  su- 
premacy throughout  the  whole  country  of  the  central  government. 
This  authority  of  the  state  or  the  nation  was  during  the  earlier 
periods  of  our  history  represented  by  the  power  of  the  Crown. 
The  King  was  the  source  of  law  and  the  maintainer  of  order. 
The  maxim  of  the  Courts,  tout  fuit  in  luy  et  vient  de  ltd  al  com- 
mencement, was  originally  the  expression  of  an  actual  and  undoubted 
fact.  This  royal  supremacy  has  now  passed  into  that  sovereignty 
of  Parliament  which  has  formed  the  main  subject  of  the  fore- 
going chapters.  • 

The  second  of  these  features,  which  is  closely  connected  with 
the  first,  is  the  rule  or  supremacy  of  law.  This  peculiarity  of  our 
polity  is  well  expressed  in  the  old  saw  of  the  Courts,  "Za  ley  est  le 
plus  haute  inheritance,  que  le  roy  ad;  car  par  la  ley  il  meme  et  toutes 
ses  sujets  sont  rules,  et  si  la  ley  ne  fuit,  md  roi,  et  mil  inheritance 
sera." 

In  England  the  idea  of  legal  equality,  or  of  the  universal  sub- 
jection of  all  classes  to  one  law  administered  by  the  ordinary  Courts 
has  been  pushed  to  its  utmost  limit.  With  us  every  official,  from  the 
Prime  Minister  down  to  a  constable  or  a  collector  of  taxes,  is  under 
the  same  responsibility  for  every  act  done  without  legal  justification 
as  any  other  citizen.  The  Reports  abound  with  cases  in  which 
officials  have  been  brought  before  the  Courts,  and  made,  in  their 
personal  capacity,  liable  to  punishment,  or  to  the  payment  of  dam- 
ages, for  acts  done  in  their  official  character  but  in  excess  ot  their 
lawful  authority.  A  colonial  governor,  a  secretary  of  state,  a 
military  officer,  and  all  subordinates,  are  as  responsible  for  any  act 
which  the  law  does  not  authorize  as  is  any  private  and  unofficial 

^  Dicey,  Law  of  the  Constitution,  chap.  IV;  Thayer,  The  Origin  and  Scope 
oi  the  American  Doctrine  of  Constitutional  Law,  Legal  Essays,  pp.  1-41 ;  Coxe, 
Judicial  Power  and  Unconstitutional  Legislation,  chaps.  XV-XXVIII;  Mc- 
Ilwain,  The  High  Court  of  Parliament  and  Its  Supremacy,  chap.  IV. 


146  HISTORY  OF  THE  COMMON  LAW 

person.  Officials,  such  for  example  as  soldiers  or  clergymen  of  the 
Established  Church,  are,  it  is  true,  in  England  as  elsewhere,  subject 
to  laws  which  do  not  affect  the  rest  of  the  nation,  and  are  in  some 
instances  amenable  to  tribunals  which  have  no  jurisdiction  over  their 
fellow-countrymen;  officials,  that  is  to  say,  are  to  a  certain  extent 
governed  under  what  may  be  termed  official  law.  But  this  fact 
is  in  no  way  inconsistent  with  the  principle  that  all  men  are  in 
England  subject  to  the  law  of  the  realm;  for  though  a  soldier  or 
a  clergyman  incurs  from  his  position  legal  liabilities  from  which 
other  men  are  exempt,  he  does  not  (speaking  generally)  escape 
thereby  from  the  duties  of  an  ordinary  citizen. 

An  Englishman  naturally  imagines  that  the  rule  of  law  (in  the 
sense  in  which  we  are  now  using  the  term)  is  a  trait  common  to 
all  civilized  societies.  But  this  supposition  is  erroneous.  Most 
European  nations  had  indeed,  by  the  end  of  the  eighteenth  century, 
passed  through  that  stage  of  development  (from  which  England 
emerged  before  the  end  of  the  sixteenth  century)  when  nobles, 
priests  and  others  could  defy  the  law;  But  it  is  even  now  far  from 
universally  true  that  in  continental  countries  all"  persons  are  sub- 
ject to  one  and  the  same  law,  or  that  the  Courts  are  supreme 
throughout  the  state.  If  we  take  France  as  a  type  of  continental 
state,  we  may  assert,  with  substantial  accuracy,  that  officials,  under 
which  word  should  be  included  all  persons  in  public  service,  are 
in  their  official  capacity,  protected  from  the  ordinary  law  of  the  land, 
exempted  from  the  jurisdiction  of  the  ordinary  tribunals,  and  subject 
in  many  respects  only  to  official  law  administered  by  official  bodies. 

Magna   Carta    (1215,  reissued  in  1216,  1217,  1225). 

Cap.  XIV.  A  free  man  shall  not  be  amerced  for  a  small  fault,  but 
after  the  manner  of  the  fault ;  and  for  a  great  fault  after  the  great- 
ness thereof,  saving  to  him  his  contenement;  and  a  merchant  like- 
wise, saving  to  him  his  merchandise  and  any  other's  villein  than 
ours  shall  be  likewise  amerced,  saving  his  wainage,  if  he  fall  into 
our  mercy.  And  none  of  the  said  amerciaments  shall  be  assessed, 
but  by  the  oath  of  honest  and  lawful  men  of  the  vicinage.  Earls 
and  barons  shall  not  be  amerced  but  by  their  peers,  and  after  the 
manner  of  their  offence.  No  man  of  the  church  shall  be  amerced 
after  the  quantity  of  his  spiritual  benefice,  but  after  his  lay-tene- 
ment, and  after  the  quantity  of  his  offence. 

Cap.  XIX.  No  consta1)le  nor  his  baliff,  shall  take  corn  or  other 
chattels  of  any  man,  if  he  be  not  of  the  town  where  the  castle  is, 


THE  SUPREMACY  OF  LAW  147 

but  he  shall  forthwith  pay  for  same  unless  that  the  will  of  the 
seller  was  to  respite  the  payment;  and  if  he  be  of  the  same  town, 
the  price  shall  be  paid  unto  him  within  forty  days. 

Cap.  XXI.  No  sheriff  nor  bailiff  of  ours,  or  any  other  shall 
take  horses  or  carts  of  any  man  to  make  carriage,  except  he  pay 
the  old  price  limited,  that  is  to  say,  for  carriage  with  two  horse, 
X  d.  a  day;  for  three  horse  xiv  d.  a  day.  No  demesne  cart  of  any 
spiritual  person  or  knight,  or  any  lord,  shall  be  taken  by  our  bailiffs; 
nor  we,  nor  our  bailiffs,  nor  any  other,  shall  take  any  man's  wood 
for  our  castles,  or  other  our  necessaries  to  be  done,  but  by  the 
license  of  him  whose  the  wood  is. 

Cap.  XXIX.  No  freeman  shall  be  taken,  or  imprisoned,  or  be 
disseised  of  his  freehold,  or  liberties,  or  free  customs,  or  be  out- 
lawed, or  exiled,  or  any  otherwise  destroyed,  nor  will  we  pass 
upon  him,  nor  condemn  him,  but  by  lawful  judgment  of  his  peers, 
or  by  the  law  of  the  land.  We  will  sell  to  no  man,  we  will  not 
deny  or  defer  to  any  man  either  justice  or  right. 

Extracts  from  Coke's  Second  Institute.  [These  extracts  are 
from  Lord  Coke's  Commentary  on  Cap.  XXIX  of  Magna 
Carta.] 

"No  man  shall  be  taken  (that  is)  restrained  of  liberty,  by  peti- 
tion or  suggestion  to  the  king  or  to  his  councell,  unless  it  be  by  in- 
dictment or  presentment  of  good  and  lawfuU  men,  where  such  deeds 
be  done." 

"No  man  shall  be  disseised,  etc." 

Hereby  is  intended  that  lands,  tenements,  goods  and  chattels 
shall  not  be  seized  into  the  king's  hands,  contrary  to  this  great 
charter,  and  the  law  of  the  land:  nor  shall  any  man  be  disseised  of 
his  lands  or  tenements  or  dispossessed  of  his  goods  and  chattels 
contrary  to  the  law  of  the  land. 

A  custom  was  alleged  in  the  town  of  C,  that  if  the  tenant  cease 
by  two  years,  that  the  lord  should  enter  into  the  freehold  of  the  ten- 
ant, and  hold  the  same  untill  he  were  satisfied  of  the  arrearages,  and 
it  was  adjudged  a  custom  against  the  law  of  the  land,  to  enter  into 
a  man's  freehold  in  that  case  without  action  or  answer. 

"No  man  destroyed,"  etc. 

That  is,  fore-judged  of  life  or  limb,  disinherited,  or  put  to  torture 
or  death. 

Every  oppression  against  law,  by  colour  of  any  usurped  authority, 
is  a  kind  of  destruction,  for,  quando  aliquid  prohibetur,  et  omne, 


148  HISTORY  OF  THE  COALMOX  LAW 

per  quod  dehitur  ad  illud:  and  it  is  the  worse  oppression,  that  is 
done  by  colour  of  justice. 

"But  by  the  law  of  the  land."  For  the  true  sense  and  exposition 
of  these  words  see  the  statute  of  37  E.  3,  cap.  8  [i.e.,  37th  year  of 
Edw.  HI]  where  the  words  by  the  law  of  the  land  are  rendered 
without  due  process  of  law,  for  there  it  is  said,  though  it  be  con- 
tained in  the  great  charter,  that  no  man  be  taken,  imprisoned  or 
put  out  of  his  freehold,  without  process  of  the  law:  that  is  by 
indictment  or  presentment  of  good  and  lawfuU  men,  where  such 
deeds  be  done  in  due  manner,  or  by  writ  originall  of  the  common  law. 

Without  being  brought  in  to  answere  but  by  due  process  of  the 
common  law. 

No  man  be  put  to  answer  without  presentment  before  justices 
or  thing  of  record,  or  by  due  process,  or  by  writ  originall,  accord- 
ing to  the  old  law  of  the  land. 

Wherein  it  is  to  be  observed,  that  this  chapter  is  but  declaratory 
of  the  old  law  of  England. 

[Lord  Coke  then  explains  under  what  circumstances  £i  man  may 
be  arrested  and  imprisoned  lawfully;  what  warrant  he  who  makes 
the  arrest  must  have;  if  a  writ  is  required,  what  it  shall  contain,  and 
proceeds :] 

Imprisonment  doth  not  only  extend  to  false  imprisonment,  and 
unjust;  but  for  detaining  of  the  prisoner  longer  than  he  ought, 
where  he  was  at  the  first  lawfully  imprisoned. 

If  the  King's  writ  comes  to  the  sherifife,  to  deliver  the  prisoner, 
if  he  detains  him,  this  detaining  is  an  imprisonment  against  the 
law  of  the  land. 

If  the  sheriffe  or  gaoler  detain  a  prisoner  in  the  gaole  after  his 
acquitall  unless  it  be  for  his  fees,  this  is  false  imprisonment. 

Now  it  may  be  demanded,  if  a  man  be  taken,  or  committed  to 
prison  contra  legem  terrae,  against  the  law  of  the  land,  what  remedy 
hath  the  party  grieved?  To  this  it  is  answered:  first,  that  every 
act  of  parliament,  made  against  any  injury,  mischiefe,  or  grievance, 
doth  either  expressly  or  implicitly  give  a  remedy  to  the  party 
wronged,  or  grieved ;  as  in  many  of  the  chapters  of  this  great  charter 
appeareth;  and  therefore  he  may  have  an  action  grounded  upon 
this  great  charter. 

2.  He  may  cause  liim  to  be  indicted  \x\nnv  this  statute  at  the 
king's  suit. 

3.  He  may  have  an  habeas  corpus  out  of  the  king's  bench  or 
chancery,  though  there  be  no  privilege,  etc.,  or  in   the   court   of 


THE  SUPREMACY  OF  LAW  149 

common  pleas  or  of  exchequer  for  any  officer  or  privileged  person 
there ;  upon  which  writ  the  gaoler  must  retourne  by  whom  he  was 
committed,  and  the  cause  of  his  imprisonment,  and  if  it  appeareth 
that  his  imprisonment  be  just  and  lawfull,  he  shall  be  remanded  to 
the  former  gaoler,  but  if  it  shall  appeare  to  the  court  that  he  was 
imprisoned  against  the  law  of  the  land,  they  ought  by  force  of  this 
statute  to  deliver  him;  if  it  be  doubtfuUand  under  consideration 
he  may  be  bailed. 

4.  He  may  have  action  of  false  imprisonment. 

5.  He  may  have  a  writ  de  homine  replegiando. 

Anonymous  Case,  Court  of  King's  Bench,  1338.  (Y.  B. 
Mich.  12  Edw.  ni..  No.  23.) 
In  a  replevin  where  the  defendant  avowed  the  distress  [i.e., 
seizure  of  property]  for  the  cause  that  he  was  made  collector  of  the 
fifteenths,  etc.,  and  did  not  show  a  warrant.  Whereupon  the 
plaintiff  demanded  judgment  whether  he  ought  to  be  received  to 
that  avowry  without  a  specialty.  It  was  said  that  he  was  sub- 
collector  and  had  to  make  an  oath,  and  that  he  would  not  have 
any  other  warrant.  ShareshuU  (J.)  said  that  he  could  not  by  law 
be  driven  to  act  in  that  capacity  without  a  special  warrant,  and 
that  if  he  were  arrested  on  that  account,  he  would  have  a  writ  of 
false  imprisonment.     (Pike's  translation.) 

Reginald  De  Nerford's  Case,  Court  of  King's  Bench,  1339- 
40.     (Y.  B.  Hil.  11  Edw.  III.,  No.  34). 

Note.  Reginald  de  Nerford  and  others  were  convicted  as  dis- 
seisors with  force  and  arms  wherefore  an  exegi  facias  issued,  which 
writ  the  sheriff  returned  to  the  effect  that  the  king  had  instructed 
him  by  letter  under  the  Targe  that  he  had  pardoned  them  their 
trespasses  and  the  imprisonment,  and  commanded  that  they  should 
not  be  put  to  damage  on  that  account,  and  so  by  reason  of  the 
king's  message  he  had  done  nothing,  and  he  returned  the  king's 
letter. 

Willoughby,  J. :  The  letter  should  have  been  sent  to  us,  and  then 
we  should  have  commanded  the  sheriff  to  stay  proceedings;  but 
the  sheriff  could  not  legally  by  virtue  of  any  such  letter  have  stayed 
proceedings  otherwise  than  by  warrant  from  the  same  place  from 
which  he  had  the  order  to  outlaw.  Wherefore  the  sheriff  was  in 
mercy  [i.e.,  was  fined]  and  a  fresh  exegi  facias  issued.  (Pike's 
translation.) 


150  HISTORY  OF  THE  COMMON  LAW 

FoRTEscuE,  De  Laudibus  Legum  Angliae,  chap.  9. 

A  King  of  England  cannot,  at  his  pleasure,  make  any  alterations 
in  the  laws  of  the  land,  for  the  nature  of  his  government  is  not  only- 
regal,  but  political.  Had  it  been  merely  regal  he  would  have  a 
power  to  make  what  innovations  and  alterations  he  pleased,  in  the 
laws  of  the  kingdom,  impose  tallages  and  other  hardships  upon  the 
people,  whether  they  would  or  no,  without  their  consent,  which  sort 
of  government  the  civil  laws  point  out,  when  they  declare  Quod 
principi  placuit  legis  habet  vigorem:  but  it  is  much  otherwise  with 
a  king,  whose  government  is  political,  because  he  can  neither  make 
any  alteration  or  change  in  the  laws  of  the  realm  without  the  con- 
sent of  the  subject,  nor  burthen  them,  against  their  wills,  with 
strange  impositions,  so  that  a  people  governed  by  such  laws  as  are 
made  by  their  own  consent  and  approbation  enjoy  their  properties 
securely  and  without  the  hazard  of  being  deprived  of  them,  either 
by  the  king  or  any  other.     (Amos's  translation.) 

The  Prior  of  Castleacre  v.  The  Dean  of  St.  Stephens, 
Common  Pleas,  1506  (Y.  B.  21  H.  7,  1). 

Kingsmill,  J.:  But,  sir,  the  act  of  Parliament  cannot  make  the 
king  to  be  parson,  for  we  through  our  law  cannot  make  any  tem- 
poral man  to  have  spiritual  jurisdiction;  for  nothing  can  do  that 
except  the  supreme  head. 

Palmes  {arguendo  upon  reargument) :  Through  the  act  of  Parlia- 
ment it  seems  the  king  cannot  be  called  parson,  for  no  temporal 
act  can  make  temporal  man  have  spiritual  jurisdiction.  For  if  it 
was  ordained  through  act  etc.,  that  such  a  one  should  not  offer 
tithes  to  his  curate,  the  eict  would  be  void,  for  of  such  thing  as  touches 
only  the  spiritualty,  such  temporal  act  can  make  no  ordinance. 
The  law  is  the  same  if  it  were  enacted  that  a  parson  should  have 
the  tithes  of  another.  So  by  this  act  which  is  only  of  a  tem]:)oral 
court,  the  king  cannot  be  made  to  have  any  spiritual  jurisdiction. 

Fisher,  J.:  And  the  king  cannot  be  parson  by  this  act  of 
Parliament,  nor  can  any  temporal  man  through  this  act  be  called 
parson. 

Frowicke,  C.  J.:  As  to  the  other  matter,  whether  the  king  can 
be  parson  by  the  act  of  Parliament,  as  I  understand  it  there  is  not 
much  to  argue.  For  I  have  not  seen  that  any  temporal  man  can 
be  parson  without  the  agreement  of  the  supreme  head.  And  in 
all  the  cases  that  have  been  put,  namely  of  the  benefices  in  Wales 
and  the  benefices  that  laymen  have  to  their  own  use,  I  have  looked 


THE  SUPREMACY  OF  LAW  151 

into  the  matter.  The  king  had  them  by  assent  and  agreement  of 
the  supreme  head.  So  a  temporal  act  without  the  assent  of  the 
supreme  head  cannot  make  the  king  parson. 

Darcy  v.  Allen,  Court  of  King's  Bench,  1603.  (Moore,  671.) 
In  the  King's  Bench:  an  action  on  the  case;  and  a  count  that, 
whereas  men  of  mean  trades  and  occupations  in  the  commonwealth 
apply  themselves  to  idle  games  with  cards,  the  queen,  by  way  of 
redress  and  restraint  of  this  enormity,  made  letters  patent  to  Ralph 
Bowes,  authorizing  him  and  his  factors  and  deputies  to  provide 
playing  cards,  and  prohibiting  all  others  to  import  playing  cards 
into  the  realm  or  to  make  or  sell  them  in  the  realm  for  a  certain  term 
of  years  now  expired,  and  [reciting  the  grant]  she  made  another 
like  grant  to  Darcy,  who  provided  cards  accordingly ;  yet  the  defend- 
ant brought  cards  into  the  realm  and  sold  them  and  did  things 
contrary  to  the  privilege  granted  to  the  plaintilT,  and  to  his  damage 
to  the  amount  of  ;!^2,000.  The  defendant  pleaded  the  customs  of 
London  that  a  freeman  may  buy  and  sell  all  things  merchantable, 
and  that,  since  he  was  a  freeman  and  haberdasher  of  London,  and 
cards  were  things  merchantable,  he  bought  and  sold  them;  and 
he  demanded  judgment.  The  plaintiff  demurred  in  law.  .  .  . 
Afterwards,  Mich.  44  and  45  Eliz.  (1602)  it  was  argued  by  Dod- 
deridge,  against  the  patent,  and  by  Fleming,  solicitor,  with  the 
patent ;  and  afterwards,  the  same  term,  by  Fuller,  against  the  patent, 
and  Coke,  Attorney  General,  with  the  Patent.  And  Dodderidge 
said  that  the  case  was  tender,  concerning  the  prince's  prerogative 
and  the  subject's  liberty  and  must  be  argued  with  much  caution; 
for  he  that  hews  above  his  head  chips  will  fall  into  his  eyes,  and 
qui  majestatem  scrutatur  principis  opprimetur  splendore  ejus.  Yet 
since  it  is  the  honor  and  safety  of  the  prince  to  govern  by  the  laws 
.  .  .  therefore  the  princes  of  this  realm  have  always  been  con- 
tent that  their  patents  and  grants  should  be  examined  by  the  laws, 
and  so  is  her  Majesty  that  now  is.  In  this  examination  it  has  al- 
ways been  held  that  the  queen's  grants  procured  against  the  usual 
and  settled  liberty  of  the  subjects  are  void,  and  also  those  which 
tend  to  their  grievance  and  oppression. 

.  It  was  resolved  by  Popham,  Chief  Justice,  et  per  totam  curiam, 
that  the  said  grant  to  the  plaintiff  of  the  sole  making  of  cards  with- 
in the  realm  was  utterly  void,  and  that  for  two  reasons:  1.  That 
it  is  a  monopoly  and  against  the  common  law.  2.  That  it  is  against 
divers  Acts  of  Parliament.     (Thayer's  translation.) 


152  HISTORY  OF  THE  COIVIMOX  LAW 

Conference  between  King  James  I.  and  the  Judges  of  Eng- 
land, 1612.  (12  Rep.  63.) 
Note:  Upon  Sunday,  the  10th  of  November  of  this  same  term, 
the  king,  upon  complaint  made  to  him  by  Bancroft,  Archbishop 
of  Canterbury,  concerning  prohibitions,  was  informed  that  when 
the  question  was  made  of  what  matters  the  ecclesiastical  Judges 
have  cognizance,  either  upon  the  opposition  of  the  statute  con- 
cerning tithes,  or  any  other  thing  ecclesiastical,  or  upon  the  stat- 
ute i  El.  concerning  the  high  commission,  or  in  any  other  case  in 
which  there  is  not  express  authority  in  law,  the  King  himself  may 
decide  it  in  his  royal  person;  and  that  the  Judges  are  but  the  dele- 
gates of  the  king,  and  that  the  king  may  take  what  causes  he  shall 
please  to  determine  from  the  determination  of  the  Judges,  and  ma^' 
determine  them  himself.  And  the  Archbishop  said  that  this  was 
clear  in  divinity  that  such  authority  belongs  to  the  king  by  the 
word  of  God  in  the  scripture.  To  w^hich  it  was  answered  by  me 
in  the  presence  and  with  the  clear  consent  of  all  the  Judges  of  Eng- 
land, and  Barons  of  the  Exchequer,  that  the  King  in  his  own  per- 
son cannot  adjudge  any  case,  either  criminal  as  treason,  felony,  &c. 
or  betwixt  party  and  party  concerning  his  inheritance,  chattels  or 
goods,  &c.,  but  this  ought  to  be  determined  and  adjudged  in  some 
court  of  justice,  according  to  the  law  and  custom  of  England,  and 
always  judgments  are  given,  ideo  consideratiim  est  per  curiam  so 
that  the  court  gives  the  judgment;  and  the  King  hath  his  court  viz: 
in  the  upper  house  of  Parliament,  in  which  he  with  his  lords  is 
the  supreme  Judge  over  all  other  judges;  for  if  error  be  in  the  Com- 
mon Pleas,  that  may  be  reversed  in  the  King's  Bench ;  and  if  the 
court  of  King's  Bench  err,  that  may  be  reversed  in  the  upper  house 
of  Parliament,  by  the  King  with  the  assent  of  the  Lords  spiritual 
and  temporal,  without  the  Commons,  in  this  respect  the  King 
is  called  Chief  Justice,  and  it  appears  in  our  books  that  the  King 
may  sit  in  the  Star  Chamber,  but  this  was  to  consult  with  the 
Justices  upon  certain  questions  proposed  to  them,  and  not  injudicio; 
so  in  the  King's  Bench  he  may  sit,  but  the  court  gives  the  judg- 
ment; and  it  is  commonly  said  in  our  books  that  the  king  is  always 
present  in  the  court  in  judgment  of  law,  but  upon  this  he  cannot  be 
nonsuit;  but  the  judgments  are  always  gi\en  per  curiam;  and  the 
Judges  are  sworn  to  execute  justice  according  to  law  and  the  custom 
of  England.  And  it  appears  by  the  Act  of  Parliament  of  2  Ed. 
3  cap.  9,  2  Ed.  3  cap.  1,  that  neither  by  the  great  seal  nor  by  the 
little  seal  justice  shall  be  delayed;    ergo,  the  king  cannot  take  any 


THE  SUPREMACY  OF  LAW  153 

cause  out  of  any  of  his  Courts,  and  give  judgment  upon  it  himself, 
but  in  his  own  cause  he  may  stay  it,  it  as  it  doth  appear.  11  H.  4 
8.  And  the  judges  informed  the  King  that  no  King  after  the 
Conquest  assumed  to  himself  to  give  any  judgment  in  any  cause 
whatever,  which  concerned  the  administration  of  justice  wnthin 
this  realm,  but  these  w^ere  solely  determined  by  the  courts  of  justice: 
and  the  king  cannot  arrest  any  man,  as  the  book  is  in  1  H.  7.  4.  for 
the  party  cannot  have  remedy  against  the  King:  so  if  the  King 
give  any  judgment  what  remedy  can  the  party  have?  Vide  39  Ed. 
3  one  who  had  a  judgment  reversed  before  the  council  of  state;  it 
was  held  utterly  void,  for  that  it  was  not  a  place  w^here  judgment 
may  be  reversed.  Vide  1  H.  7.  4.  Hussey,  Chief  Justice,  who  was 
Attorney  to  Ed.  4.  reports  that  Sir  John  Markham,  Chief  Justice, 
said  to  King  Edw.  4  that  the  King  cannot  arrest  a  man  for  suspi- 
cion of  treason  or  felony,  as  others  of  his  lieges  may;  for  that  if  it 
be  wrong  to  the  party  grieved,  he  can  have  no  remedy;  and  it  was 
greatly  mar/elled  that  the  Archbishop  durst  inform  the  King  that 
such  absolute  power  and  authority  as  is  aforesaid  belonged  to  the 
King  by  Word  of  God.  Vide  4  H.  4  Cap.  22,  which  being  trans- 
lated into  Latin,  the  effect  is,  judicia  in  curia  Regs  reddita  non 
annihiletiir,  sed  stet  judicium  in  suo  rohore  quosqiie  per  judicium 
curiae  Regis  tanquam  erroneum,  &c.  Vide  West  2  cap.  5.  Vide  le 
Stat,  de  Marlbridge,  Cap.  1.  Provisum  est  concordatum,  et  conces- 
sum,  quod  tarn  majores  quam  minores  iustitiam  habeant  et  recipiant 
in  curia  domini  Regis,  et  vide  le  stat.  de  Magna  Carta,  cap.  29,  25 
Ed.  3.  cap.  5.  None  may  be  taken  by  petition  or  suggestion  made 
to  our  lord  the  King  or  his  council,  unless  by  judgment:  and  43 
Ed.  3.  cap.  3,  no  man  shall  be  put  to  answer  without  presentment 
before  the  Justices,  matter  of  record,  or  by  due  proofs,  or  by  writ 
original  according  to  the  ancient  law  of  the  land :  and  if  anything 
be  done  against  it,  it  shall  be  void  in  law  and  held  for  error.  Vide 
28  Ed.  3.  c.  3.  37  Ed.  3.  cap.  18.  Vide  17  R.  2.  ex  rotulis  Parlia- 
menti  in  Turri,  art.  10.  A  controversy  of  land  between  parties  was 
heard  by  the  king,  and  sentence  given,  which  was  repealed,  for  this, 
that  it  did  belong  to  the  common  law.  Then  the  King  said  that 
he  thought  the  law  was  founded  upon  reason,  and  that  he  and  others 
had  reason  as  well  as  the  judges:  to  which  it  was  answered  by  me 
that  true  it  was,  that  God  had  endowed  his  Majesty  with  excellent 
science,  and  great  endowments  of  nature;  but  his  Majesty  was  not 
learned  in  the  laws  of  his  realm  of  England,  and  causes  which 
concern  the  life,  or  inheritance,  or  goods  or  fortunes  of  his  subjects, 


154  HISTORY  OF  THE  COMMON  LAW 

are  not  to  be  decided  by  natural  reason,  but  by  the  artificial  reason 
and  judgment  of  law,  which  law  is  an  art  which  requires  long  study 
and  experience  before  that  a  man  can  attain  to  the  cognizance 
of  it;  and  that  the  law  was  the  golden  met  wand  and  measure  to 
try  the  causes  of  the  subjects  and  which  protected  his  Majesty  in 
safety  and  peace ;  with  which  the  King  was  greatly  offended  and  said 
that  then  he  should  be  under  the  law,  which  was  treason  to  afifirm, 
as  he  said:  to  which  I  said  that  Bracton  saith,  quod  Rex  non  debet 
esse  sub  homine,  sed  sub  Deo  ei  lege.  [Coke  who  was  Chief  Justice 
and  spokesman  of  the  judges  is  reporting  this.] 

Den  d.  Bayard  v.  Singleton,  Court  of  Conference  of  North 
Carolina,  1787.     (1  Martin,  N.  C.  42.) 

Ejectment.  This  action  was  brought  for  the  recovery  of  a 
valuable  house  and  lot,  with  a  wharf  and  other  appurtenances, 
situate  in  the  town  of  Newbern. 

The  defendant  pleaded  Not  guilty,  under  the  common  rule. 

He  held  under  a  title  derived  from  the  State,  by  a  deed,  from  a 
Superintendent  Commissioner  of  confiscated  estates. 

At  May  Term,  1786,  Nash,  for  the  defendant,  moved  that  the 
suit  be  dismissed,  according  to  an  Act  of  the  last  session,  entitled 
an  Act  to  secure  and  quiet  in  their  possession  all  such  persons, 
their  heirs  and  assigns,  who  have  purchased  or  may  hereafter 
purchase  lands  and  tenements,  goods  and  chattels,  which  have 
been  sold  or  may  hereafter  be  sold  by  commissioners  of  forefeited 
estates,  legally  appointed  for  that  purpose,  1785,  7,  553. 

The  Act  requires  the  courts,  in  all  cases  where  the  defendant 
makes  affidavit  that  he  holds  the  disputed  property  under  a  sale 
from  a  commissioner  of  forfeited  estates,  to  dismiss  the  suit  on 
motion. 

The  defendant  had  filed  an  affidavit,  setting  forth  that  the 
property  in  dispute  had  been  confiscated  and  sold  by  the  com- 
missioner of  the  district. 

This  l)rought  on  long  arguments  from  the  counsel  on  each  side, 
on  constitutional  points. 

At  May  Term,  1787,  Nash's  motion  was  resumed,  and  j^roduced 
a  very  lengthy  debate  from  the  Bar. 

Whereupon  the  court  recommended  to  the  parties  to  consent 
to  a  fair  decision  of  the  ])r()perty  in  cjucstion,  by  a  jury  according 
to  the  common  law  of  the  land,  and  pointed  out  to  the  defendant 


THE  SUPREMACY  OF  LAW  155 

the  uncertainty  that  would  always  attend  his  title,  if  this  cause 
should  be  dismissed  without  a  trial;  as  upon  a  repeal  of  the  present 
Act  (which  would  probably  happen  sooner  or  later),  suit  might  be 
again  commenced  against  him  for  the  same  property,  at  the  time 
when  evidences,  which  at  present  were  easy  to  be  had,  might 
be  wanting.     But  this  recommendation  was  without  effect. 

The  court,  then,  after  every  reasonable  endeavor  had  been 
used  in  vain  for  avoiding  a  disagreeable  difference  between  the 
legislature  and  the  judicial  powers  of  the  State,  at  length  with 
much  apparent  reluctance,  but  with  great  deliberation  and  firm- 
ness, gave  their  opinion  separately,  but  unanimously,  for  over- 
ruling the  aforementioned  motion  for  the  dismission  of  the  said 
suits. 

In  the  course  of  which  the  judges  observed,  that  the  obligation 
of  their  oaths,  and  the  duty  of  their  office  required  them,  in  that 
situation,  to  give  their  opinion  on  that  important  and  momentous 
subject;  and  that  notwithstanding  the  great  reluctance  they  might 
feel  against  involving  themselves  in  a  dispute  with  the  legislature 
of  the  State,  yet  no  object  of  concern  or  respect  could  come  in 
competition  or  authorize  them  to  dispense  with  the  duty  they  owed 
the  public,  in  consequence  of  the  trust  they  were  invested  with 
under  the  solemnity  of  their  oaths. 

That  they  therefore  were  bound  to  declare  that  they  considered, 
that  whatever  disabilities  the  persons  under  whom  the  plaintiffs 
were  said  to  derive  their  titles,  might  justly  have  incurred,  against 
their  maintaining  or  prosecuting  any  suits  in  the  courts  of  this 
State;  yet  that  such  disabilities  in  their  nature  were  merely  per- 
sonal, and  not  by  any  means  capable  of  being  transferred  to  the 
present  plaintiffs,  either  by  descent  or  purchase;  and  that  these 
plaintiffs,  being  citizens  of  one  of  the  United  States,  are  citizens 
of  this  State,  by  the  confederation  of  all  the  States;  which  is  to  be 
taken  as  a  part  of  the  law  of  the  land,  unrepealable  by  any  Act  of  the 
General  Assembly. 

That  by  the  Constitution  every  citizen  had  undoubtedly  a  right 
to  a  decision  of  his  property  by  a  trial  by  jury.  For  that  if  the  legis- 
lature could  take  away  this  right,  and  require  him  to  stand  con- 
demned in  his  property  without  a  trial,  it  might  with  as  much 
authority  require  his  life  to  be  taken  away  without  a  trial  by  jury, 
and  that  he  should  stand  condemned  to  die,  without  the  formality 
of  any  trial  at  all;    that  if  the  members  of  the  General  Assembly 


156  HISTORY  OF  THE  COMMON  LAW 

could  do  this,  they  might  with  equal  authority,  not  only  render 
themselves  the  legislators  of  the  State  for  life,  without  any  further 
election  of  the  people,  from  thence  transmit  the  dignity  and  author- 
ity of  legislation  down  to  their  heirs  male  forever. 

But  that  it  was  clear,  that  no  Act  they  could  pass,  could  by  any 
means  repeal  or  alter  the  Constitution,  because,  if  they  coiild  do 
this,  they  would  at  the  same  instant  of  time  destroy  their  own 
existence  as  a  legislature,  and  dissolve  the  government  thereby 
established.  Consequently  the  Constitution  (which  the  judicial 
power  was  bound  to  take  notice  of  as  much  as  of  any  other  law 
whatever),  standing  in  full  force  as  the  fundamental  law  of  the 
land,  notwithstanding  the  Act  on  which  the  present  motion  was 
grounded,  the  same  act  must  of  course,  in  that  instance,  stand  as 
abrogated  and  without  any  effect. 

Nash's  motion  was  overruled. 


3.     THE  DEVELOPMENT  OF  EQUITY  ^ 

Maine,  Ancient  Law,  23,  27. 

A  general  proposition  of  some  value  may  be  advanced  with 
respect  to  the  agencies  by  which  Law  is  brought  into  harmony  with 
society.  These  instrumentalities  seem  to  me  to  be  three  in  num- 
ber. Legal  Fictions,  Equity,  and  Legislation.  Their  historical 
order  is  that  in  which  I  have  placed  them.  Sometimes  two  of  them 
will  be  seen  operating  together,  and  there  are  legal  systems  which 
have  escaped  the  influence  of  one  or  other  of  them.  But  I  know 
of  no  instance  in  which  the  order  of  their  appearance  has  been 
changed  or  inverted. 

The  next  instrumentality  by  which  the  adaptation  of  law  to  social 
wants  is  carried  on  I  call  Equity,  meaning  by  that  word  any  body 
of  rules  existing  by  the  side  of  the  original  civil  law,  founded  on 
distinct  principles,  and  claiming  incidentally  to  supersede  the  civil 
law  in  virtue  of  a  superior  sanctity  inherent  in  those  principles. 
The  Equity,  whether  of  the  Roman  Praetors  or  of  the  English 
Chancellors  differs  from  the  Fictions  which  in  each  case  preceded  it, 
in  that  the  interference  with  law  is  open  and  avowed.  On  the  other 
hand,  it  differs  from  Legislation,  the  agent  of  legal  improvement 


^  Maitland,  Equity,  Lectures    I  and  II;    Kerly,  History  of  Equity;    Spence, 
History  of  the  Equitable  Jurisdiction  of  the  Court  of  Chancery  (2  vols). 


THE  DEVELOPMENT  OF  EQUITY  157 

which  comes  after  it,  in  that  its  claim  to  authority  is  grounded, 
not  on  the  prerogative  of  any  external  person  or  body,  not  even  on 
that  of  the  magistrate  who  enunciates  it,  but  on  the  special  nature 
of  its  principles,  to  which  it  is  alleged  that  all  law  ought  to  conform. 
The  very  conception  of  a  set  of  principles,  invested  with  a  higher 
sacredness  than  those  of  the  original  law,  and  demanding  appli- 
cation independently  of  the  consent  of  any  external  body,  belongs 
to  a  much  more  advanced  stage  of  thought  than  that  to  which  legal 
fictions  originally  suggested  themselves. 

Extracts  from  Coke's  Fourth  Institute  (written  in  the  reign 
of  James  I.). 

In  chancery  are  two  courts,  one  ordinary,  coram  domino  rege  in 
cancellaria,  wherein  the  lord  Chancellor  or  lord  keeper  of  the  great 
seale  proceeds  according  to  the  right  line  of  the  laws  and  statutes 
of  the  realm,  secundum  legem  et  consuetiidinem  Angliae.  Another 
extraordinary,  according  to  the  rule  of  equity,  secundum  aequum  et 
honum.  And  first  of  the  former  court.  He  hath  power  to  hold 
plea  of  scire  Jac'^  for  repeal  of  the  King's  letters  patents,  of  peti- 
tions, of  monstrans  de  droits,'^  traverse  of  offices,^  partitions  in 
chancery,  of  scire  fac'  upon  recognizances  in  this  court,  writs  of 
audita  querela  and  scire  fac  in  the  nature  of  an  audita  querela  ■* 
to  avoid  executions  in  this  court,  .  .  .  and  all  personal  actions  by 
or  against  any  officer  or  minister  of  that  court  in  respect  of  their 
service  or  attendance  therein. 

This  court  is  officina  justitiae,  out  of  which  all  originall  writs  and 
all  commissions  which  pass  under  the  great  seale  go  forth,  which 
great  seal  is  clavis  regni,  and  for  those  ends  this  court  is  ever  open. 

Having  spoken  of  the  court  of  ordinary  jurisdiction,  it  followeth 
according  to  our  former  division,  that  we  speak  of  the  extraordinary 
proceeding,  according  to  the  rule  ot  equity,  secundum  aequum  et 
honum. 

Albeit  our  ancient  authors,  the  Mirrour,  Glanvill,  Britton  and 
Fleta  doe  treat  of  the  former  Court  in  Chancery,  and  of  originall 
writs  and  commissions  issuing  out  of  the  same,  yet  none  of  them 

'  Scire  facias,  order  to  show  cause. 

2  Showing  of  right.     A  proceeding  to  obtain  reHef  against  the  crown. 

^  Proceedings  to  recover  property  of  which  the  crown  has  taken  possession  on 
escheat  or  forfeiture. 

*  Proceedings  for  reHef  against  a  judgment  by  reason  of  subsequent  events 
operating  as  a  discharge. 


158  HISTORY  OF  THE  COMMON  LAW 

do  once  mention  this  court  of  equity.  We  have  also  considered 
what  cases  in  this  court  of  equity  ha\e  been  reported  in  our  books, 
and  we  find  none  before  the  reign  of  H.  6,  and  in  tliat  king's  time 
and  afterward  plentifully. 

Goodwin,  The  Equity  of  the  King's  Court  before  the 
Reign  of  Edward  I.,  12. 
If  it  would  seem  to  be  true  that  Glanvill  and  Bracton  borrow 
their  conception  of  equity  from  the  aequitas  of  the  Roman  law, 
they  are,  nevertheless,  but  applying  new  terms  to  an  institution  as 
essentially  Teutonic  as  Roman.  In  the  early  Germanic  State,  the 
king  exercised  a  jurisdiction  based  on  broader  principles  of  right 
and  justice  than  that  of  the  ordinary  tribunals;  he  was  not  in  a  like 
degree  bound  down  to  the  formality  of  the  law  and  could  decide 
the  case  before  his  court  according  to  principles  of  equity.  The 
Prankish  king  of  the  Merovingian  period  granted  to  those  whom 
he  had  taken  into  his  special  protection  a  writ  containing  the  privi- 
lege of  withdrawing  their  suits  from  the  local  courts  in  favor  of  the 
king's  court,  there  to  be  decided  secundum  aequitatem.  In  the 
Carolingian  period,  the  man  who  had  suffered  from  the  strictness 
and  formality  of  the  ordinary  court,  might  seek  alleviation  {mod- 
eratio)  from  the  king.  .  .  .  Although  the  Roman  law,  which 
reserved  the  exercise  of  equity  for  the  consistoriiini  principis,  may 
well  have  held  its  influence  on  the  court  of  the  Prankish  kings, 
nevertheless,  as  Professor  Brunner  clearly  points  out,  the  fact  that 
the  same  equitable  jurisdiction  existed  in  Anglo-Saxon  England,  in 
Iceland,  and  in  Sweden,  proves  its  origin  as  a  Germanic  as  well 
as  a  Roman  institution. 

Prom  the  Secular  Ordinance  of  Edgar  (959-975). 

Cap.  2.  And  let  no  one  apply  to  the  king  in  any  suit,  unless  he  at 
home  may  not  be  worthy  of  law  or  cannot  obtain  law.  If  the  law 
be  too  heavy,  let  him  seek  a  mitigation  of  it  from  the  king;  and  for 
any  bot-worthy  crime,  let  no  man  forfeit  more  than  his  wer. 

Mitford,  Pleadings  in  Chancery  (2  ed.  1787),  6. 

A  suit  to  the  extraordinary  jurisdiction  of  the  court  of  chancery, 
on  behalf  of  a  subject  merely,  is  commenced  by  preferring  a  bill, 
in  the  nature  of  a  petition,  to  the  lord  chancellor,  lord  keeper,  or 
lords  commissioners  for  the  custody  of  the  great  seal;  or  to  the 
king  himself  in  his  court  of  chancery,  in  case  the  person  holding  the 


THE  DEVELOPMENT  OF  EQUITY  159 

seal  is  a  party,  or  the  seal  is  in  the  king's  hands.  But  if  the  suit 
is  instituted  on  behalf  of  the  crown,  or  of  those  who  partake  of 
its  prerogative,  or  whose  rights  are  under  its  particular  protection 
as  the  objects  of  a  public  charity,  the  matter  of  complaint  is  offered 
to  the  court  by  way  of  information,  given  by  the  proper  officer, 
and  not  by  petition.  Except  in  some  few  instances,  bills  and  in- 
formations have  always  been  in  the  English  language;  and  a  suit 
preferred  in  this  manner  in  the  court  of  chancery  has  been  there- 
fore commonly  termed  a  suit  by  English  bill,  by  way  of  distinction 
from  the  proceedings  in  suits  within  the  ordinary  jurisdiction  of  the 
court,  w^hich,  till  the  statute  of  4  Geo.  II,  c.  26  (1730),  w-ere  entered 
and  enrolled,  more  anciently  in  the  French  or  Norman  tongue,  and 
afterwards  in  the  Latin,  in  the  same  manner  as  the  pleadings  in  the 
other  courts  of  common  law. 

William  Dodd  v.  John  Browning  et  al.  Temp.  Henry  V. 
Calendars  of  Proceedings  in  Chancery,  I,  xiii.  (This  is  the 
plaintiff's    bill.) 

To  my  worthy  and  gracious  Lord  Bishope  of  Wynchester,  Chan- 
cellor of  Yngelonde: 

Beseching  mekely  youre  povre  bedeman  William  Dodde,  char- 
yotr,  whech  passed  overe  the  see  in  service  wt  our  liege  lorde  and 
was  oon  of  his  charioterys  in  his  viages;  &  of  his  treste  ffefed  in 
my  land  Johan  Brownyng  and  Johan  .  .  .  hull  of  Chekewell  wt  my 
wyfe,  whech  Johan  &  Johan  after  azenst  my  wall  &  wetynge  pot  my 
land  to  ferme,  and  delyvered  my  mevable  good  the  valewe  of  xx 
marke  where  hem  leste;  &  thus  they  kepe  my  dede  &  the  dentre  wt 
my  mevable  good  unto  myne  undoynge ;  also  whech  am  undo  for 
brusinge  in  service  of  our  liege  lorde,  &  in  service  of  yt  worthy 
Princesse  my  lady  of  Clarence  &  ever  wolde  yef  my  lemys  might 
serve  worthy  prince  sone.  At  reverence  of  God  and  of  that  pere- 
less  Princes  his  moder,  take  this  matre  at  hert  of  alms  and  charitie. 

Margaret    Appilgarth    v.    Thomas    Sergeantson.    Temp. 
Henry  VI.     (1439).     Calendars  of  Proceedings  in   Chancery, 
I,   xli.      (This  is  the  plaintiff's  bill.) 
To  the  right  reverent  Fadre  in  God,  the  Bisshop  of  Bathe,  Chaun- 
celler  of  England. 

Besecheth  mekely  Margaret  Appilgarth  of  York  wydewe,  that 
where  Thomas  Sergeantson  of  the  same,  at  divers  times  spak  to 
yor  saide  besecher  ful  sadly  and  hertly  in  hir  conceit,  and  sought 


160  HISTORY  OF  THE  COMMON  LAW 

upon  hir  to  have  hir  to  wyfe,  desiring  to  have  of  hir  certain  golde 
to  the  some  of  xxxvj  li.  for  costes  to  bee  made  of  their  mariage, 
&  to  emploie  in  marchandise  to  his  encrese  &  profit  as  to  hir  hus- 
bande.  Whereuppon  she  havyng  ful  byleve  &  trust  in  his  trouthe 
&  langage,  nor  desiring  of  him  eeny  contract  of  matrymoyne,  de- 
livered him  the  saide  some  at  diverse  tymes;  aftre  the  which  hveree 
furthwith  he  nat  wiUing  to  rehvere  the  saide  some  to  yor  saide 
bisechere  hathe  take  to  wyfe  an  othre  woman,  in  grete  deceit,  hurt 
&  uttre  undooyng  of  hir,  without  yor  gracieux  help  &  socor  in  this 
partie.  Please  it  to  yor  good  grace  to  considre  the  premisses,  and 
that  yor  saide  bisechere  no  remedy  hath  by  the  comone  lawe  to  get 
ageine  the  saide  some;  &  ther  upon  to  graunte  a  writ  ageins  the 
said  Thomas  to  appere  afore  you  at  a  certaine  day  upon  a  certaine 
peyne  by  you  to  bee  lymit,  to  bee  examined  upon  the  premisses; 
&  ther  upon  make  him  to  doo  as  good  feith  &  consciens  wol  in  this 
partie.     And  she  shall  pray  God  for  you. 

Anonymous  Case,  Court  of  Common  Pleas,  1465.  (Y.  B. 
4  E.  IV.,  8,  9.)     Digby's  translation, 

[Action  of  trespass  quare  clausuni  Jregit.  The  defendant  pleaded 
that  plaintiff  held  the  land  to  his  use.     Plaintiff  demurred.] 

Catesby  (counsel  for  defendant) :  Wherefore  should  the  de- 
fendant not  avail  himself  of  this  matter,  when  it  follows  by  reason 
that  the  defendant  enfeoffed  the  plaintiff  to  the  use  of  the  defendant, 
and  so  that  the  plaintiff  is  only  in  the  land  to  the  use  of  the  defendant 
and  the  defendant  made  the  feoffment  to  the  plaintiff  in  trust  and 
confidence?  And  the  plaintiff  suffered  the  defendant  to  occupy  the 
land,  so  that  by  reason  that  the  defendant  occupied  the  land  at  his 
will,  this  proves  that  the  defendant  shall  have  the  advantage  of  this 
feoffment  in  trust,  in  order  to  justify  his  occupation  of  the  land 
by  this  cause   &c. 

Moile  (J.):  This  is  a  good  ground  of  defence  in  Chancery,  for 
the  defendant  there  shall  aver  the  intent  and  purpose  upon  such  a 
feoffment,  for  in  the  Chancery  a  man  shall  have  remedy  according 
to  conscience  upon  the  intent  of  such  a  feoffment,  but  here  by  the 
course  of  the  common  law  in  the  Common  Pleas  or  King's  Bench 
it  is  otherwise,  for  the  feoffee  shall  have  the  land ;  and  the  feoffor 
shall  not  justify  contrary  to  his  own  feoffment,  that  the  said  feoff- 
ment was  made  in  confidence,  or  the  contrary. 

Catesby:  The  law  of  Chancery  is  the  common  law  of  the  land, 
and  there  the  defendant  shall  have  advantage  of  this  matter  and 


THE  DEVELOPMENT  OF  EQUITY  161 

feoffment ;  wherefore  then  shall  he  not  have  it  in  the  same  manner 
here? 

Moile  (J.) :  That  cannot  be  so  here  in  this  court,  as  I  have  already 
said,  for  the  common  law  of  the  land  is  different  from  the  law  of 
Chancery  on  this  point. 

Russell's  Case,  King's  Bench,  1483.     (Y.  B.  22  E.  IV,  37). 

In  the  King's  Bench  one  Thomas  Russell  and  Alice  his  wife 
brought  a  writ  of  trespass  of  the  goods  of  the  said  Alice  carried  off 
dum  sola  fuit:  and  the  defendant  comes  and  pleads  not  guilty: 
and  was  found  guilty  with  damages  ^20  by  inquest  at  Nisi  Prius: 
and  before  the  day  in  banc  an  injunction  was  issued  out  of  the 
Chancery  against  the  plaintiffs,  that  they  should  not  proceed  to 
judgment  under  pain  of  £100:  wherefore  the  judgment  was  stayed 
for  a  long  time.  And  then  Hussey,  the  Chief  Justice  asked  of  Spil- 
man  and  Fincheden,  who  were  with  the  plaintiffs,  if  they  wished  to 
pray  judgment  according  to  the  verdict.  Fincheden:  Yes,  unless 
for  doubt  of  the  penalty  involved  in  the  injunction  or  for  doubt  of 
imprisonment  of  our  client  for  non-obedience  to  the  Chancellor; 
otherwise  we  wish  to  pray  judgment.  Fairfax  (J.):  Notwith- 
standing the  injunction  he  may  pray  judgment:  for  if  the  injunc- 
tion was  against  the  plaintiff  himself,  then  his  attorney  may  pray 
judgment,  or  b  contra.  Hussey  (J.):  We  have  communed  of  this 
matter  among  ourselves,  and  see  not  any  harm  which  can  come 
to  the  party,  if  he  prayed  judgment  against  him,  for  that  he  should 
have  the  sum  contained  in  the  injunction.  The  law  would  not 
wish  to  deny  him  this.  I  well  know  then  there  is  nothing  else  except 
imprisonment  in  the  Fleet.  And  as  to  that,  if  the  Chancellor  com- 
mits a  man  to  the  Fleet,  as  long  as  you  are  there  if  you  will  give  us 
cognizance  we  will  issue  a  habeas  corpus  returnable  before  us,  and 
when  he  comes  before  us  we  will  dismiss  him:  and  so  he  shall 
not  be  put  to  great  mischief;  and  all  that  we  can  do  for  him,  we 
will  do.  But  notwithstanding  this,  Fairfax  said  he  would  go  to 
the  Chancellor  and  ask  of  him  if  he  would  dismiss  the  injunction: 
and  they  demanded  judgment:  and  they  had  [judgment]  that  they 
should  recover  their  damages  taxed  by  the  inquest:  but  they 
would  not  give  judgment  to  have  damages  for  the  vexation  in  the 
Chancery  by  injunction:  and  they  said,  that  if  the  Chancellor  would 
not  dismiss  him  from  the  injunction,  that,  notwithstanding  that, 
they  would  have  given  judgment,  if  the  party  wished  to  pray  for 
it:   qiiod  nota,  etc. 


162  HISTORY  OF  THE  COMMON  LAW 

Extracts  from  A  Replication  of  a  Serjalnte  at  the  Lawes 
OF  England  to  Certaine  Pointes  Alleaged  by  a  Stu- 
dent OF   THE  Said  Lawes  of  England.     Written  temp. 
Henry  VHL  in  answer  to  certain  points  in  the  contemporary 
treatise  called  Doctor  and  Student.    (Hargrave's  Law  Tracts, 
323.) 
[In  Doctor  and  Student  the  student  had  explained  that  where  a 
bond  had  been  given  and  paid,  but  no  release  had  been  taken, 
though  the  bond  was  enforceable  at  law,  the  obligor  might  prevent 
suit  upon  it  and  obtain  cancellation  by  a  subpoena  in  chancery. 
To  this  the  serjeant  takes  exception.] 

I  mervaile  moche  what  authorite  the  chancellor  hath  to  make 
such  a  writ  in  the  Kinge's  name,  and  howe  he  dare  presume  to 
make  soche  a  writ  to  let  the  Kinge's  subjects  to  sue  his  lawes,  the 
which  the  kinge  himselfe  cannot  do  rightewiselye ;  for  he  is  sworne 
the  contrarie,  and  it  is  saide  hoc  possumns  quod  de  jure  possumus. 
Also  the  king's  judges  of  this  realme,  that  bee  appointed  to  minyster 
his  lawes  of  his  realme  be  sworne  to  minister  his  lawes  of  the  realme 
indifferentlye  to  the  kinge's  subjects;  and  so  is  not  the  chancellor. 
Also  the  serjaunts  at  the  lawe  be  sworne  to  see  the  king's  subjects 
to  be  justifyed  by  the  lawes  of  this  realme  determinable  by  the 
king's  judges  and  not  by  my  lord  chancellor.  Yet  this  notwith- 
standinge,  if  the  kinge's  subjects,  upon  a  surmised  bill  put  into  the 
chauncerie,  shal  be  prohibited  by  a  subpoena  to  sue  accordinge  to 
the  lawes  of  the  realme,  and  be  compelled  to  make  aunsweare  before 
my  lord  chauncellor,  than  shall  the  lawe  of  the  realme  be  set  as 
voyde  and  taken  as  a  thing  of  none  effecte,  and  the  king's  subjects 
vshall  be  ordered  by  the  discretion  of  the  chauncellor  and  by  no  lawe, 
contrarie  to  all  good  reason  and  all  good  policy.  And  so  me  scem- 
cth,  that  such  a  sute  by  a  subpoena  is  not  onlye  against  the  law 
of  the  realme,  but  also  against  the  lawe  of  reason.  Also  me  seemeth, 
that  it  is  not  confoarmable  to  the  lawe  of  God.  For  the  lawe 
of  God  is  not  contrary  in  itself,  that  is  to  say,  one  in  one  place, 
and  contrary  in  another  place,  if  it  be  well  pcrceyved  and  understood, 
as  ye  can  tell,  Mr.  Doctour;  but  this  lawe  is  one  in  one  courte 
contrarie  in  another  court.  And  so  me  scemclh,  that  it  is  not  onlie 
againste  the  lawe  of  reason,  but  also  against  the  lawe  of  God.  Also 
me  seemeth,  that  this  suite  by  asubpoi'na  is  againste  the  common 
well  of  the  realme.  For  the  common  well  of  evcrie  realme  is  to 
have  a  good  lawe,  so  that  the  subjects  of  the  realme  male  be  justi- 
fied by  the  same,  and  the  more  plaine  and  open  that  the  lawe  is, 


THE  DEVELOPMENT  OF  EQUITY  163 

and  the  more  knowledge  and  understanding  that  the  subject  hath 
of  the  lawe,  the  better  it  is  for  the  common  well  of  the  realme;  and 
the  more  uncertaine  that  the  lawe  is  in  any  realme,  the  lesse  and 
the  worse  it  is  for  the  common  well  of  the  realme.  But  if  the 
subjects  of  any  realme  shall  be  compelled  to  leave  the  lawe  of  the 
realme,  and  to  be  ordered  by  the  discretion  of  one  man,  what  thinge 
may  be  more  unknowen  or  more  uncertaine?  But  if  this  manner 
of  suite  by  a  subpoena  be  maintayned,  as  you,  Mr.  Student,  wold 
have  it,  in  what  uncertaintie  shall  the  king's  subjects  stande, 
whan  they  shall  be  put  from  the  lawe  of  the  realme,  and  be  com- 
pelled to  be  ordered  by  the  discretion  and  conscience  of  one  man! 
And  namelie  for  as  moch  as  conscience  is  a  thinge  of  great  uncer- 
taintie; for  some  men  thinke  that  if  they  treade  upon  two  strawes 
that  lye  acrosse,  that  they  ofende  in  conscience,  and  some  man 
thinketh  that  if  he  lake  money,  and  another  hath  too  moche,  that 
he  may  take  part  of  his  with  conscience;  and  so  divers  men  divers 
conscience ;  for  everie  man  knoweth  not  what  conscience  is  so  well 
as  you,  Mr.  Doctour. 

Student.  Howe  is  it  than,  that  the  chancellours  of  England 
have  used  this? 

Serjaunte.  Verelie  I  thincke  for  lacke  of  knowledge  of  the  good- 
ness of  the  lawes  of  the  realme;  for  moste  commonly  the  chan- 
celours  of  England  have  been  spiritual  men,  that  have  had  but  super- 
ficial knowledge  in  the  lawes  of  the  realme;  and  whan  soch  a  byll 
hath  been  made  unto  them,  that  soche  a  man  should  have  greate 
wronge  to  be  compelled  to  paie  two  times  for  one  thinge,  the  chan- 
cellour,  not  know  inge  the  goodness  of  the  common  lawe,  neyther  the 
inconvenience  that  mighte  ensue  by  the  saide  writ  of  subpoena,  hath 
temerouslye  directed  a  subpoena  to  the  plaintiff  in  the  kinge's  name, 
commandinge  him  to  cease  his  suite  that  he  hath  before  the  king's 
justices,  and  to  make  aunsweare  before  him  in  the  chauncerie;  and 
he  regardinge  no  lawe,  but  trustinge  to  his  owne  wit  and  wisdom, 
giveth  judgment  as  it  pleaseth  himselfe,  and  thinketh,  that  his  judg- 
ment being  in  soche  authoritie  is  farre  better  and  more  reasonable 
than  judgments  that  be  given  by  the  king's  justices  according  to 
the  common  lawe  of  the  realme.  In  my  conceite  in  this  case  I  may 
liken  my  lord  chaunceler,  which  is  not  learned  in  the  lawes  of  the 
realme,  to  him,  that  stands  in  the  Vale  of  White-horse  farre  from  the 
horse  and  holdeth  the  horse;  and  the  horse  seemeth  and  appeereth 
to  him  a  goodly  horse  and  well  proportioned  in  every  poinct,  and 
that  if  he  come  neere  to  the  place  wher  the  horse  is  he  can  perceave 


164  HISTORY  OF  THE  COMMON  LAW 

no  horse  nor  proportion  of  any  horse.  Even  so  it  fareth  by  my 
lord  chauncelor  that  is  not  learned  in  the  lawes  of  the  realmc;  for 
whan  such  a  bill  is  put  unto  him,  it  appeereth  to  him  to  be  a  matter 
of  great  conscience  and  requireth  reformation;  and  the  matter  in 
the  bill  appeereth  so  to  him,  because  he  is  farre  from  the  under- 
standinge  and  the  knowledge  of  the  lawe  of  the  realme  and  the  good- 
ness thereof ;  but  if  he  draw  neere  to  the  knowledge  and  understand- 
inge  of  the  common  law  of  the  realme,  so  that  he  male  come  to  the 
perfecte  knowledge  and  goodnes  of  it,  he  shall  well  perceive  that  the 
matter  contayned  in  the  bill  put  to  him  in  the  chauncerie  is  no 
matter  to  be  refourmed  there,  and  namelie  in  soche  wise  as  is  used. 
Moreover,  Mr.  Student,  I  marvaile  moche,  that  ye  say  that  men  that 
have  wronge  maye  be  holpen  in  many  cases  by  a  subpcrna,  in  so 
moche  as  you  have  in  your  NatnraBreviiim  sevrall  writts  and  divers 
natures  for  the  reformation  of  everie  wronge  that  is  donne  and 
committed  contrarye  to  the  lawes  of  the  realme;  and  amonge 
a'l  your  writs  that  you  have  in  your  NaturaBrcvium,  ye  have  none 
there  called  subpoena,  neyther  yet  the  nature  of  him  declared  there, 
as  ye  ha\e  of  all  the  writs  specified  in  the  saide  booke.  Wherefore 
me  seemeth  it  standeth  not  with  your  studie,  neither  yet  with  your 
learninge  of  the  lawes  of  the  realme,  that  any  man  that  is  wronged 
should  have  his  remedie  by  a  subpoena.  If  a  subpoena  had  been  a 
writ  ordained  by  the  lawe  of  the  realme  to  reforme  a  wronge,  as 
other  writs  in  the  saide  book  be,  he  shold  have  bin  set  in  the  booke  of 
Natura  Brevium,  and  the  nature  of  him  declared  there,  and  for 
the  reformation  of  what  wronge  it  layeth,  as  it  is  in  the  writs 
contayned  in  the  saide  booke;  and  for  as  moche  as  it  is  not  so,  it  is  a 
writ  abused  in  my  mynde  contrarie  to  the  common  lawe  of  the 
realme,  and  contrary  to  reason,  and  all  good  conscience,  and  yet  is 
coloured  by  the  pretence  of  conscience. 

Extracts  from  Coke's  Fourth  Institute. 

In  the  parliament  holden  13  R.  2  (1390)  the  commons  petitioned 
to  the  king  that  neither  the  chancellor  nor  other  counsellor  doe  make 
any  order  against  the  common  law,  nor  that  any  judgment  be  given 
without  due  processe  of  law.  Whereunto  the  king's  answer 
was:  The  usages  heretofore  shall  stand,  so  as  the  king's  royalty  be 
saved.     .     .     . 

In  the  parliament  holden  in  17  R.  2  (1394),  it  is  enacted  at  pe- 
tition of  the  commons,  that  forasmuch  as  people  were  compelled  to 
come  before  the  king's  council,  or  in  chancery,  by  writs  grounded 


THE  DEVELOPMENT  OF  EQUITY  165 

upon  untrue  suggestions,  that  the  chancelor  for  the  time  being 
presently  after  that  such  suggestions  be  duly  found  and  proved 
untrue,  shall  have  power  to  ordain  and  award  damages  ac- 
cording to  his  discretion  to  him  who  is  so  travelled  unduly  as  is 
aforesaid . 

[Lord  Coke  now  quotes  or  cites  three  similar  petitions  of  the 
commons  in  the  reigns  of  Henry  IV.  and  Henry  V.,  and  proceeds:] 

The  commons  petitioned  that  no  writs  or  privy  seals  be  sued  out 
of  the  chancery,  exchequer,  or  other  places  to  any  man  to  appear  at 
a  day  upon  a  pain,  either  before  the  king  and  his  councell,  or  in  any 
other  place,  contrary  to  the  ordinary  course  of  the  common  law; 
whereunto  the  king  answered  that  such  writs  should  not  be  granted 
without  necessity. 

Amongst  the  petitions  of  the  commons  you  shall  find  this,  That 
all  writs  of  subpoena  and  certis  de  causis,  going  out  of  the  chancery 
and  the  exchequer  may  be  enrolled,  and  not  granted  of  matters 
determinable  at  the  common  law,  on  pain  the  plaintiff  doe  pay  by 
way  of  debt  to  the  defendant  forty  pound ;  whereunto  is  answered 
the  king  will  be  advised.^ 

It  is  enacted  to  endure  untill  the  next  parliament,  that  the  ex- 
ception (how  that  the  party  hath  sufficient  remedy  at  the  common 
law)  shall  discharge  any  matter  in  chancery.  At  the  next  parliament 
you  shall  find  a  petition  in  these  words:  No  man  to  be  called  by 
privy  seal  or  subpoena  to  answer  any  matters  but  such  as  have  no 
remedy  by  the  common  law,  and  that  to  appear  so  by  the  testimony 
of  two  justices  of  either  bench,  and  by  indenture  between  them  and 
the  plaintiff.     .     . 

In  anno  31  H.  6,  cap.  2  (1453)  there  is  a  proviso  in  these  words: 
Provided  that  no  matter  determinable  by  the  law  of  this  realm  shall 
be  by  the  said  act  determined  in  other  form  than  after  the  course 
of  the  same  law  in  the  king's  courts  having  jurisdiction  of  the 
same  law. 

Heath  v.  Rydley,  King's  Bench,  1613.  (Croke's  James  335.) 
In  an  action  of  debt  at  the  common  law,  judgment  being  against 
the  defendant,  and  day  given  to  move  in  arrest  thereof,  he  in  the 
interim  preferred  his  bill  in  chancery,  and  obtained  an  injunction 
to  stay  judgment  and  execution:  but,  notwithstanding,  the  Court 
granted  both;  for  by  the  statutes  of  27   Edw.  3  c.  1  and  4  Hen.  4 


^The  formula  when  the  king  vetoes  a  bill- 


166  HISTORY  OF  THE  COMMON  LAW 

c.  23  after  judgment  given  (be  it  in  plea  real  or  personal),  the  party 
ought  to  be  quiet,  and  to  submit  thereto;  for  a  judgment  being 
once  given  in  curia  domini  regis,  ought  not  to  be  re\-ersed  nor 
avoided  but  by  error  or  attaint.  And  in  the  same  Term,  upon  a 
prohibition  to  stay  proceedings  in  the  court  of  requests,  it  was 
delivered  for  a  general  maxim  in  law,  That  if  any  court  of  equity 
should  intermeddle  with  any  matters  properly  trialile  at  the  com- 
mon law,  or  which  concern  freehold,  they  are  to  be  prohibited;  for 
neither  writ  of  error  nor  attaint  can  be  brought  to  reverse  the  decrees 
made  in  those  courts:  otherwise  it  is  upon  trials  at  the  common 
law;  for  all  matters  are  there  decided  either  by  a  jury  of  twelve 
men,  against  whom  (if  they  err  in  their  verdict)  an  attaint  lieth; 
or  by  the  Judges,  where  if  they  err  in  their  judgment,  the  party 
grieved  may  bring  his  writ  of  error. 

Wilson,  Life  of  James  L,  94-95. 

A  little  before  this  time  there  was  a  breach  between  the  Lord 
Chief  Justice  Cook  and  the  Lord  Chancellor  Ellesmer,  which  made 
a  passage  to  both  their  declines.  Sir  Edward  Cook  had  heard  and 
determined  a  Cause  at  the  Common  Law,  and  some  report  there 
was  jugling  in  the  business.  The  witness  that  knew,  and  should 
have  related  the  Truth,  was  wrought  upon  to  be  absent,  if  any 
man  would  undertake  to  excuse  his  non-appearance.  A  prag- 
matical fellow  of  the  party  undertook  it,  went  with  the  witness 
to  a  Tavern,  called  for  a  Gallon  pot  full  of  Sack,  bid  him  drink, 
and  so  leaving  him  went  into  the  Court.  This  witness  is  called 
for  as  the  prop  of  the  Cause,  the  Undertaker  answers  upon  Oath, 
He  left  him  in  such  a  condition,  that  if  he  continues  in  it  but  a 
quarter  of  an  hour,  he  is  a  dead  man.  This  evidencing  the  mans 
incapability  to  come,  deaded  the  matter  so,  that  it  lost  the  Cause. 
The  Plaintiffs  that  had  the  Injury  bring  the  business  about  in  Chan- 
cery; the  Defendants  (liaving  had  Judgment  at  Common  Law) 
refuse  to  obey  the  Orders  of  that  Court,  whereupon  the  Lord 
Chancellor  for  contempt  of  the  Court  commits  them  to  prison. 
They  petition  against  him  in  the  Star  Chamber,  the  Lord  Chief 
Justice  joyns  with  them,  foments  tiie  difference,  threatning  the 
Lord  Chancellor  with  a  Premunire.  The  Chancellor  makes  the 
King  acfiuainted  with  the  business,  who  sent  to  Sir  Francis  Bacon 
his  Attorney  General,  Sir  Henry  Montague,  and  Sir  Randolph 
Crew  his  Serjeants  at  Law,  and  Sir  Henry  Yelverton  his  Sollicitor, 
commanding  them  to  search  what  Presidents  there  have  been  of 


THE  DEVELOPMENT  OF  EQUITY  167 

late  years,  wherein  such  as  complained  in  Chancery  were  reliexed 
according  to  Equity  and  Conscience,  after  judgment  at  Common 
Law.  These  being  men  well  versed  in  their  Profession  (after  can- 
vassing the  matter  thoroughly)  returned  answer  to  the  King,  That 
there  hath  been  a  strong  current  of  Practice  and  proceeding  in 
Chancery,  after  Judgment  at  Common  Law,  and  many  times  after 
Execution,  continued  since  Henry  the  sevenths  time,  to  the  Lord 
Chancellor  that  now  is,  both  in  the  Reigns  (seriatim)  of  the  sev- 
eral Kings,  and  the  times  of  the  several  Chancellors,  whereof  divers 
were  great  learned  men  in  the  Law ;  it  being  in  Cases  w  here  there 
is  no  Remedy  for  the  Subject  by  the  strict  course  of  the  Common 
Law  unto  which  the  Judges  are  sworn.  This  satisfied  the  King, 
justified  the  Lord  Chancellor,  and  the  Chief  Justice  received  the 
foil;  which  was  a  bitter  potion  to  his  spirit,  but  not  strong  enough 
to  work  on  him  as  his  Enemies  wished. 

Haynes,  Outlines  of  Equity,  14. 

The  history  of  the  growth  and  development  of  equity  jurisdic- 
tion is,  indeed,  by  no  means,  as  not  unfrequently  supposed,  that  of 
a  gradual,  slow  encroachment.  On  the  contrary,  turning  to  the 
earliest  records,  we  see  at  first  the  chancellors  trying  apparently 
to  redress  e\'ery  grievance  of  whate\er  nature,  w^hich  would  other- 
wise be  remediless;  while  the  labors  of  the  more  recent  judges 
consisted,  not  merely  in  developing  heads  of  equity  already  founded, 
but  in  pruning  the  luxuriance  of  the  earlier  jurisdiction. 

In  illustration  of  this  position,  let  me  turn  to  the  book  which  I 
now  take  up,  and  which  contains  the  most  authentic  information 
we  possess  respecting  the  early  proceedings  in  chancery.  It  is  the 
first  volume,  "Calendars  in  Chancery  of  Queen  Elizabeth,"  printed 
by  order  of  the  record  commissioners.  Prefixed  to  the  calendars  is 
contained  a  selection  of  bills  and  petitions  of  dates  anterior  to 
Queen  Elizabeth's  reign,  accompanied,  in  the  later  instances,  by  the 
answers,  replications,  and  depositions  of  the  witnesses.  The  gen- 
eral character  of  these  early  proceedings  is  in  the  preface  to  the 
publication  thus  described:  "Most  of  the  ancient  petitions  appear 
to  have  been  presented  in  consequence  of  assaults  and  trespasses 
and  a  variety  of  outrages  which  were  cognizable  at  common  law, 
but  for  which  the  party  complaining  was  unable  to  obtain  redress, 
in  consequence  of  the  maintenance  and  protection  afTorded  to  his 
adversary  by  some  powerful  baron,  or  by  the  sheriff,  or  by  some 
officer  of  the  county  in  which  they  occurred."     I   need  hardly 


168  HISTORY  OF  THE  COMMON  LAW 

observe  to  the  youngest  beginner  amongst  you,  that  any  such  cause 
for  coming  into  equity  has  long  since  ceased  to  exist;  and  even  if 
any  such  in  fact  existed,  it  would  clearly  at  the  present  day  con- 
stitute no  ground  for  equitable  interposition.   .  .   . 

But  in  truth,  we  find  considerable  inaccuracy  of  opinion  respect- 
ing the  true  function  of  equity  prevailing  at  a  much  later  date 
than  that  of  these  precedents.  Thus,  the  celebrated  confidential 
adviser  of  Henry  the  Seventh,  Archbishop  Morton,  appears, 
according  to  a  report  in  the  Year  Books,  to  have  denied  even  the 
distinction  between  "technical  equity"  and  "equity  in  the  sense  of 
natural  justice."  The  report  of  the  case  which  is  noticed  by  both 
Mr.  Spence  and  Lord  Campbell  is  rather  curious. 

It  appears  that  one  of  two  executors,  colluding  with  a  debtor  to 
the  testator's  estate,  had  released  the  debtor.  The  coexecutor  filed 
a  bill  against  the  executor  and  the  debtor.  The  chancellor  was  dis- 
posed to  grant  relief.  Fineux,  counsel  for  the  defendant,  observes 
"that  there  is  the  law  of  the  land  for  many  things  —  and  that  many 
things  are  tried  in  Chancery  which  are  not  remediable  at  common 
law ;  and  some  are  merely  matter  of  conscience,  between  a  man  and 
his  confessor,"  thus  pointing  out  accurately  the  distinctions  between 
law,  equity,  and  religion.  But  the  chancellor  retorts:  "Sir,  I  know 
that  every  law  is,  or  ought  to  be,  according  to  the  law  of  God," 
(ignoring  thus  altogether  any  distinction  between  law  and  religion) ; 
and  then,  merging  completely  the  chancellor  in  the  archbishop,  he 
continues:  "and  the  law  of  God  is,  that  an  executor,  who  is  evilly 
disposed,  shall  not  waste  all  the  goods,  etc.  And  I  know  well  that 
if  he  do  so,  and  do  not  make  amends,  if  he  have  the  power,  il  sera 
damne  in  hell."  And  then  the  chancellor  proceeds  to  lay  down 
some  rather  unsound  law. 

Earl  of  Oxford's  Case,  In  Chancery,  1616.    (1  Rep.  in  Chan., 
1,4-11.) 
Lord  Chancellor  Ellesmere:    1.    The  law  of  God  speaks  for  the 
plaintifT.     Deut.  xxviii. 

2.  And  equity  and  good  conscience  speak  wholly  for  him. 

3.  Nor  does  the  law  of  the  land  speak  against  him.  But  that 
and  equity  ought  to  join  hand  in  hand  in  moderating  and  restrain- 
ing all  extremities  and  hardshi])s. 

By  the  law  of  God,  he  that  builds  a  house  ought  to  dwell  in  it; 
and  he  that  plants  a  vineyard  ought  to  gather  the  grapes  thereof. 
Deut.  xxviii,  30. 


THE  DEVELOPMENT  OF  EQUITY  109 

And  yet  here  in  this  case,  such  is  the  conscience  of  the  doctor, 
the  defendant,  that  he  would  have  the  houses,  gardens,  and  or- 
chards, which  he  neither  built  nor  planted;  but  the  chancellors 
have  always  corrected  such  corrupt  consciences,  and  caused  them 
to  render  quid  pro  quo:  for  the  common  law  itself  will  admit  no 
contract  to  be  good  without  gidd  pro  quo,  or  land  to  pass  without 
a  valuable  consideration;  and  therefore  equity  must  see  that  a  pro- 
portionable satisfaction  be  made  in  this  case. 

[The  Chancellor  then  cites  and  discusses  a  precedent,  and  pro- 
ceeds :] 

And  his  Lordship,  the  plaintiff  in  this  case,  only  desires  to  be 
satisfied  of  the  true  value  of  the  new  building  and  planting  since 
the  conveyance,  and  convenient  allowance  for  the  purchase. 

And  equity  speaks  as  the  law  of  God  speaks,  but  you  would 
silence  equity. 

First.    Because  you  have  a  judgment  at  law. 

Secondly.     Because  that  judgment  is  upon  a  statute  law. 

To  which  I  answer,  — 

First.  As  a  right  of  law  can  not  die,  no  more  can  equity  in  chan- 
cery die;  and,  therefore,  nullus  recedat  a  Cancellaria  sine  remedio, 
4  E.  4,  1 1 ,  a.  Therefore  the  Chancery  is  always  open ;  and  although 
the  term  be  adjourned,  the  Chancery  is  not;  for  conscience  and 
equity  are  always  ready  to  render  to  everyone  their  due,  9  E.  4,  11,  a. 
The  Chancery  is  only  removable  at  the  will  of  the  King  and  Chan- 
cellor; and  by  27  E.  3,  15,  the  Chancellor  must  give  account  to 
none,  but  only  to  the  King  and  Parliament. 

The  cause  why  there  is  a  Chancery  is,  for  that  men's  actions  are 
so  divers  and  infinite,  that  it  is  impossible  to  make  any  general  law 
which  may  aptly  meet  with  every  particular  act,  and  not  fail  in 
some  circumstances. 

The  ofhce  of  the  Chancellor  is  to  correct  men's  consciences  for 
frauds,  breaches  of  trusts,  wrongs,  and  oppressions,  of  what  nature 
soever  they  be,  and  to  soften  and  mollify  the  extremity  of  the  law, 
which  is  ca.\\edsummumjt(s.  .  .   . 

But,  secondly,  it  is  objected  that  this  is  a  judgment  upon  a  stat- 
ute law. 

To  which  I  answer,  it  hath  ever  been  the  endeavor  of  all  parlia- 
ments to  meet  with  the  corrupt  consciences  of  men  as  much  as 
might  be,  and  to  supply  the  defects  of  the  law  therein;  and  if  ihis 
cause  were  exhibited  to  the  Parliament,  it  would  soon  be  ordered 
and  determined  by  equity;  and  the  Lord  Chancellor  is,  by  his  place, 


170  HISTORY  OF  THE  COMMON  LAW 

under  his  majesty,  to  supply  that  power  until  it  may  be  had,  in  all 
matters  of  meum  and  tuum,  between  party,  and  party;  and  the 
Lord  Chancellor  doth  not  except  to  the  statute  or  the  law  (judg- 
ment) upon  the  statute,  but  taketh  himself  bound  to  obey  that 
statute,  according  to  8  Ed.  4;  and  the  judgment  thereupon  may 
be  just;  and  the  college,  in  this  case,  may  have  a  good  title  in  law, 
and  the  judgment  yet  standeth  in  force.  .  .  . 

Selden,  Table  Talk,  tit.  Equity.  [Selden  died  1654.  His  Table 
Talk  was  published  by  his  amanuensis  after  his  death. 1 
Equity  in  law  is  the  same  that  the  spirit  is  in  religion,  what 
everyone  pleases  to  make  it.  Sometimes  they  go  according  to  con- 
science, sometimes  according  to  law,  sometimes  according  to  the 
will  of  the  court.  Equity  is  a  roguish  thing;  for  the  law  w^e  have  a 
measure,  know  what  to  trust  to;  equity  is  according  to  the  con- 
science of  him  that  is  chancellor,  and  as  that  is  larger  or  narrower, 
so  is  equity.  'Tis  all  one  as  if  they  should  make  his  foot  the  stand- 
ard. For  if  the  measure  we  call  a  chancellor's  foot,  what  an  un- 
certain measure  this  would  be.  One  chancellor  has  a  long  foot, 
another  a  short  foot,  another  an  indifferent  foot ;  'tis  the  same  thing 
in   the   chancellor's  conscience. 

Spence,  Equitable  Jurisdiction  of  the  Court  of  Chancery, 
1,413. 
Some  extravagances  which  originated  perhaps  in  too  high  an 
estimate  on  the  part  of  the  Chancellors  of  Henry  VHI  and  Eliza- 
beth, of  their  individual  endowments,  and  erroneous  views  as  to 
the  nature  of  their  office,  occasioned  in  part  by  the  language  of  flat- 
tery, gave  occasion  to  the  great  Selden  to  remark,  more  perhaps  in 
jest  than  in  earnest,  that  equity  was  a  roguish  thing;  it  was  accord- 
ing to  the  conscience  of  him  that  was  Chancellor,  and  as  that  was 
larger  or  narrower,  so  was  equity.  This  might  indeed  have  been  a 
true  picture  of  the  court  on  its  original  foundation,  had  not  the 
equitable  doctrines  and  provisions  of  the  Roman  Law  been  taken 
as  the  principles  on  which  its  decisions  were  to  be  founded ;  but  it 
is  plain  that  the  jurisdiction  never  could  have  been  established  if 
the  conscience  of  the  judge  had  been  his  only  guide.  It  may  be 
remarked,  however,  that  too  much  consideration  was  sometimes 
given  to  the  Conscience  of  the  Queen.  It  is  "the  holy  conscience 
of  the  Queen,  for  matter  of  equity,"  said  Sir  C.  Hatton  [temp. 
Elizabeth],  "that  is  in  some  sort  committed  to  the  Chancellor." 


THE  DEVELOPMENT  OF  EQUITY  171 

But  generally  during  this  reign,  as  well  as  before,  equity  and 
conscience  as  rules  of  decision  were  deferred  to  principles  deduced 
from  the  Roman  jurisprudence,  the  sanction  of  which  was  occa- 
sionally directly  adverted  to,  independently  of  the  private  conscience 
of  the  judge.  Nothing  is  recorded  as  having  been  delivered  judi- 
cially from  the  bench  which  can  warrant  the  supposition  that  the 
private  opinion  or  conscience  of  the  judge,  or  what  is  perhaps 
equivalent,  his  whim  or  caprice,  independent  of  principle  and  prece- 
dent, was  a  legitimate  ground  of  decision. 

No  doubt  precedents  had  to  be  made  when  cases  of  extremity, 
to  use  the  language  of  the  times,  arose,  calling  for  the  interference 
of  the  court  to  correct  the  rigor  of  the  law  or  to  supply  its  defects. 

These  precedents,  though  not  of  binding  authority  like  judgments 
at  law,  for  if  they  had  been,  at  that  time,  a  Court  of  Equity  must 
afterwards  have  been  erected  to  correct  the  Court  of  Chancery; 
nor  entered  of  record  as  judgments  at  law,  were  frequently,  from 
Henry  VI  downwards,  reported  in  the  Year  Books,  —  to  be  referred 
to,  no  doubt,  as  future  guides.  These,  together  with  other  cases, 
were  collected  and  published  in  the  reigns  of  Elizabeth,  James  and 
Charles. 

The  Chancellors  in  many  cases  expressly  referred  to  precedent 
as  the  ground  of  their  decisions. 

We  find  the  Chancellor  in  the  time  of  Car.  I,  where  the  case 
exhibited  no  novelty  in  its  circumstances  so  as  to  call  for  a  prece- 
dent to  be  made,  refusing  to  interfere  because  there  was  no  prece- 
dent; and  there  are  instances  of  references  to  the  chief  justices  and 
other  judges  to  see  whether  the  Lord  Chancellor  had  jurisdiction  in 
the  cause.  Lord  Ellesmere,  (temp.  James  I)  fully  recognizing  the 
force  of  precedent,  endeavored  to  provide  against  the  irregulari- 
ties, to  which  he  occasionally  gave  way,  being  converted  into  prece- 
dents. I  may  add  that  the  precedents  collected  by  Tothill  and  Sir 
George  Cary,  have  been  cited  by  subsequent  judges,  amongst 
others  by  the  great  Lord  Hardwicke  [Chancellor,  1737-1756],  so 
that  there  is  an  uninterrupted  chain  in  the  influence  of  precedent 
from  the  earliest  times,  in  the  application  of  the  principles  of 
equity  and  conscience,  positively,  that  is  where  they  ought  to  be 
applied,  and  negatively,  that  is,  where  the  law  ought  to  be  left 
to  its  own  operation. 

When,  therefore,  Lord  Nottingham  declared  (1676),  that  with 
such  a  Conscience  as  is  only  natural! s  et  interna  this  court  has 
nothing  to  do,  the  Conscience  by  which  he  was  to  proceed  was 


172  HISTORY  OF  THE  COMMON  LAW 

merely  civilis  and  polilica;  he  was  not  making  a  rule,  but  declaring 
what  had  become  of  the  established  doctrine  of  the  Court. 

Maitland,  Equity,  6-11. 

I  do  not  think  that  in  the  fourteenth  century  the  Chancellors 
considered  that  they  had  to  administer  any  body  of  substantive 
rules  that  dififered  from  the  ordinary  law  of  the  land.  They  were 
administering  the  law,  but  they  were  administering  it  in  cases  which 
escaped  the  meshes  of  the  ordinary  courts.  The  complaints  that 
come  before  them  are  in  general  complaints  of  indubitable  legal 
wrongs,  assaults,  batteries,  imprisonments,  disseisins,  and  so  forth 
—  wrongs  of  which  the  ordinary  courts  take  cognizance,  wrongs 
which  they  ought  to  redress.  But  then  owing  to  one  thing 
and  another  such  wrongs  are  not  always  redressed  by  courts  of 
law.  In  this  period  one  of  the  commonest  of  all  the  reasons  that 
complainants  will  give  for  coming  to  the  Chancery  is  that  they 
are  poor  while  their  adversaries  are  rich  and  influential  —  too 
rich,  too  influential  to  be  left  to  the  clumsy  processes  of  the  old 
courts  and  the  verdicts  of  juries.  However,  this  sort  of  thing  can  not 
well  be  permitted.  The  law  courts  will  not  have  it  and  parliament 
will  not  have  it.  Complaints  against  this  extraordinary  justice 
grow  loud  in  the  fourteenth  century.  In  history  and  in  principle 
it  is  closely  connected  with  another  kind  of  extraordinary  justice 
which  is  yet  more  objectionable,  the  extraordinary  justice  that  is 
done  in  criminal  cases  by  the  King's  Council.  Parliament  at  one 
time  would  gladly  be  rid  of  both  —  of  both  the  Council's  inter- 
ference in  criminal  matters,  and  the  Chancellor's  interference 
with  civil  matters.  And  so  the  Chancellor  is  warned  off  the  field 
of  common  law  —  he  is  not  to  hear  cases  which  might  go  to  the 
ordinary  courts,  he  is  not  to  make  himself  a  judge  of  torts  and  con- 
tracts, of  property  in  lands  and  goods. 

But,  then,  just  at  this  time  it  is  becoming  plain  that  the  Chan- 
cellor is  doing  some  convenient  and  useful  works  that  could  not 
be  done,  or  could  not  easily  be  done  by  the  courts  of  common  law. 
He  has  taken  to  enforcing  uses  or  trusts.  Of  the  origin  of  uses  or 
trusts  you  wuU  have  read  and  I  shall  have  something  to  say  about 
it  on  another  occasion,  I  don't  myself  believe  that  the  use  came 
to  us  as  a  foreign  thing.  I  don't  believe  that  there  is  anything 
Roman  about  it.  I  believe  that  it  was  a  natural  outcome  of  ancient 
English  elements.  But  at  any  rate  I  must  ask  you  not  to  believe 
that  either  the  mass  of  the  nation  or  the  common  lawyers  of  the 


THE  DEVELOPMENT  OF  EQUITY  173 

fourteenth  and  fifteenth  centuries  looked  with  disfavour  upon 
uses.  No  doubt  they  were  troublesome  things,  things  that  might 
be  used  for  fraudulent  purposes,  and  statutes  were  passed  against 
those  who  employed  them  for  the  purpose  of  cheating  their  creditors 
or  evading  the  law  of  mortmain.  But  I  have  not  a  doubt  that 
they  were  very  popular,  and  I  think  we  may  say  that  had  there 
been  no  Chancery,  the  old  courts  would  have  discovered  some 
method  of  enforcing  these  fiduciary  obligations.  That  method, 
however,  must  have  been  a  clumsy  one.  A  system  of  law  which  will 
never  compel,  which  will  never  even  allow,  the  defendant  to  give 
evidence,  a  system  which  sends  every  question  of  fact  to  a  jury, 
is  not  competent  to  deal  adequately  with  fiduciary  relationships. 
On  the  other  hand,  the  Chancellor  had  a  procedure  which  was  very 
well  adapted  to  this  end.  To  this  we  may  add  that  very  possibly 
the  ecclesiastical  courts  (and  the  Chancellor,  you  will  remember,  was 
almost  always  an  ecclesiastic)  had  for  a  long  time  past  been  punish- 
ing breaches  of  trust  by  spiritual  censures,  by  penance  and  excom- 
munication. And  so  by  general  consent,  we  may  say,  the  Chan- 
cellor was  allowed  to  enforce  uses,  trusts  or  confidences. 

Thus  one  great  field  of  substantive  law  fell  into  his  hand  —  a 
fruitful  field,  for  in  the  course  of  the  fifteenth  century  uses  became 
extremely  popular.  Then,  as  we  all  know,  Henry  VHI  —  for  it 
was  rather  the  king  than  his  subservient  parliament  — ■  struck  a 
heavy  blow  at  uses.  The  king  was  the  one  man  in  the  kingdom 
who  had  everything  to  gain  and  nothing  to  lose  by  abolishing 
uses,  and  as  we  all  know  he  merely  succeeded  in  complicating  the 
law,  for  under  the  name  of  "trusts"  the  Chancellors  still  reigned 
over  their  old  province.  And  then  there  were  some  other  matters 
that  were  considered  to  be  fairly  within  his  jurisdiction.  An  old 
rhyme  allows  him  "fraud,  accident,  and  breach  of  confidence"  — 
there  were  many  frauds  which  the  stiff  old  procedure  of  the  courts 
of  law  could  not  adequately  meet,  and  "accident,"  in  particular 
the  accidental  loss  of  a  document,  was  a  proper  occasion  for  the 
Chancellor's  interference.  No  one  could  set  any  very  strict  limits 
to  his  power,  but  the  best  hint  as  to  its  extent  that  could  be  given 
in  the  sixteenth  century  was  given  by  the  words  "fraud,  accident 
and  breach  of  confidence."  On  the  other  hand,  he  was  not  to 
interfere  where  a  court  of  common  law  offered  an  adequate  remedy. 
A  bill  was  "demurrable  for  want  of  equity"  on  that  ground. 

In  the  course  of  the  sixteenth  century  we  begin  to  learn  a  little 
about  the  rules  that  the  Chancellors  are  administering  in  the  field 


174  HISTORY  OF  THE  COMMON  LAW 

that  is  thus  assigned  to  them.  They  are  known  as  "the  rules  of 
equity  and  good  conscience."  As  to  what  they  hax-e  done  in  remoter 
times  we  have  to  draw  inferences  from  very  sparse  evidence.  One 
thing  seems  pretty  plain.  They  had  not  considered  themselves 
strictly  bound  by  precedent.  Remember  this,  our  reports  of  cases 
in  courts  of  law  go  back  to  Edward  I's  day  —  the  middle  ages  are 
represented  to  us  by  the  long  series  of  Year  Books.  On  the  other 
hand,  our  reports  of  cases  in  the  Court  of  Chancery  go  back  no 
further  than  1557;  and  the  mass  of  reports  which  come  to  U5 
from  between  that  date  and  the  Restoration  in  16G0  is  a  light  matter. 
This  by  itself  is  enough  to  show  us  that  the  Chancellors  have  not 
held  themselves  very  strictly  bound  by  case  law,  for  men  have  not 
cared  to  collect  cases.  Nor  do  I  believe  that  to  any  very  large  ex- 
tent the  Chancellors  had  borrowed  from  the  Roman  Law  — -  this 
is  a  disputed  matter;  Mr.  Spence  has  argued  for  their  Romanism, 
Mr.  Justice  Holmes  against  it.  No  doubt  through  the  medium  of 
the  canon  law  these  great  ecclesiastics  were  familiar  with  some  of 
the  great  maxims  which  occur  in  the  Institutes  or  the  Digest.  One 
of  the  parts  of  the  Corpus  Juris  Canonici,  the  Liber  Sextus,  ends 
with  a  bouquet  of  these  high-sounding  maxims — Qui  prior  est 
tempore  potior  est  jure,  and  so  forth,  maxims  familiar  to  all  readers 
of  equity  reports.  No  doubt  the  early  Chancellors  knew  these 
and  valued  them  —  but  I  do  not  believe  that  we  ought  to  attribute 
to  them  much  knowledge  of  Roman  law  or  any  intention  to  Roman- 
ise the  law  of  England.  For  example,  to  my  mind  the  comparison 
sometimes  drawn  between  the  so-called  double  ownership  of  Eng- 
land, and  the  so-called  double  ownership  of  Roman  law  cannot  be 
carried  below  the  surface.  In  their  treatment  of  uses  or  trusts 
the  Chancellors  stick  close,  marvellously  close,  to  the  rules  of  the 
common  law  —  they  often  consulted  the  judges,  and  the  lawyers 
who  pleaded  before  them  were  common  lawyers,  for  there  was  as 
yet  no  "Chancery  Bar."  On  the  whole,  my  notion  is  that  with 
the  idea  of  a  law  of  nature  in  their  minds  they  decided  cases  without 
much  reference  to  any  written  authority,  now  making  use  of  some 
analogy  drawn  from  the  common  law,  and  now  of  some  great 
maxim  of  jurisprudence  which  they  hav^e  borrowed  from  the  canon- 
ists or  the  civilians. 

In  the  second  half  of  the  sixteenth  century  the  jurisprudence  of 
the  court  is  becoming  settled.  The  day  for  ecclesiastical  Chan- 
cellors is  passing  away.  Wolsey  is  the  last  of  the  great  ecclesiastical 
Chancellors,  though  in  Charles  I's  day  we  have  one  more  divdne  in 


THE  DEVELOPMENT  OF  EQUITY  175 

the  person  of  Dr.  Williams.  Ellesmere,  Bacon,  Coventry,  begin 
to  administer  an  established  set  of  rules  which  is  becoming  known 
to  the  public  in  the  shape  of  reports  and  they  begin  to  publish  rules 
of  procedure.  In  James  I's  day  occured  the  great  quarrel  between 
Lord  Chancellor  Ellesmere  and  Chief  Justice  Coke  which  finally 
decided  that  the  Court  of  Chancery  was  to  have  the  upper  hand 
over  the  courts  of  law.  If  the  Chancery  was  to  carry  out  its 
maxims  about  trust  and  fraud  it  was  essential  that  it  should  have 
a  power  to  prevent  men  from  going  into  the  courts  of  law  and  to 
prevent  men  from  putting  in  execution  the  judgments  that  they 
had  obtained  in  courts  of  law.  In  fraud  or  in  breach  of  trust  you 
obtain  a  judgment  against  me  in  a  court  of  law;  I  complain  to  the 
Chancellor,  and  he,  after  hearing  what  you  have  to  say,  enjoins  you 
not  to  put  in  force  your  judgment,  says  in  effect  that  if  you  do  put 
your  judgment  in  force  you  will  be  sent  to  prison.  Understand 
well  that  the  Court  of  Chancery  never  asserted  that  it  was  superior 
to  the  courts  of  law;  it  never  presumed  to  send  to  them  such  man- 
dates as  the  Court  of  King's  Bench  habitually  sent  to  the  inferior 
courts,  telling  them  that  they  must  do  this  or  must  not  do  that 
or  quashing  their  proceedings^ — -the  Chancellor's  injunction  was 
in  theory  a  very  different  thing  from  a  mandamus,  a  prohibition, 
a  certiorari,  or  the  like.  It  was  addressed  not  to  the  judges,  but 
to  the  party.  You  in  breach  of  trust  have  obtained  a  judgment 
—  the  Chancellor  does  not  say  that  this  judgment  was  wrongly 
granted,  he  does  not  annul  it,  he  tells  you  that  for  reasons  personal 
to  yourself  it  will  be  inequitable  for  you  to  enforce  that  judgment, 
and  that  you  are  not  to  enforce  it.  For  all  this,  however,  it  was 
natural  that  the  judges  should  take  umbrage  at  this  treatment  of 
their  judgments.  Coke  declared  that  the  man  who  obtained  such 
an  injunction  was  guilty  of  the  offence  denounced  by  the  Statutes 
of  Praemunire,  that  of  calling  in  question  the  judgments  of  the 
king's  courts  in  other  courts  (these  statutes  had  been  aimed  at  the 
Papal  curia).  King  James  had  now  a  wished-for  opportunity  of 
appearing  as  supreme  over  all  his  judges,  and  all  his  courts,  and, 
acting  on  the  advice  of  Bacon  and  other  great  lawyers,  he  issued  a 
decree  in  favour  of  the  Chancery.  From  this  time  forward  the 
Chancery  had  the  upper  hand.  It  did  not  claim  to  be  superior 
to  the  courts  of  law,  but  it  could  prevent  men  from  going  to  those 
courts,  whereas  those  courts  could  not  prevent  men  from  going  to  it. 
Its  independence  being  thus  secured,  the  court  became  an  ex- 
tremely busy  court.     Bacon  said  that  he  had  made  2000  orders 


176  HISTORY  OF  THE  COMMON  LAW 

in  a  year,  and  we  are  told  that  as  many  as  16,000  causes  were 
pending  before  it  at  one  time:  indeed  it  was  hopelessly  in  arrear 
of  its  work.  Under  the  Commonwealth  some  vigorous  attempts 
were  made  to  reform  its  procedure.  Some  were  for  abolishing  it 
altogether.  It  was  not  easily  forgotten  that  the  Court  of  Chancery 
was  the  twin  sister  of  the  Court  of  Star  Chamber.  The  projects 
for  reform  came  to  an  end  with  the  Restoration.  Still  it  is  from 
the  Restoration  or  thereabouts  ■ —  of  course  a  precise  date  can  not 
be  fixed  —  that  we  may  regard  the  equity  administered  in  the 
Chancery  as  a  recognised  part  of  the  law  of  the  land.  Usually, 
though  not  always,  the  great  seal  is  in  the  keeping  of  a  great  lawyer 
— 'in  1667  Sir  Orlando  Bridgman,  the  great  conveyancer,  has  it; 
in  1673  Sir  Heneage  Finch,  afterwards  Lord  Nottingham,  who 
has  been  called  the  father  of  equity;  in  1682  Sir  Francis  North, 
afterwards  Lord  Guilford;  in  1693  Sir  John  Somers,  afterwards 
Lord  Somers,  a  great  common  lawyer.  I  think  that  Anthony 
Ashley,  Earl  of  Shaftesbury,  the  famous  Ashley  of  the  Cabal,  was 
the  last  non-lawyer  who  held  it,  and  he  held  it  for  but  one  year, 
from  1672  to  1673.  Then  during  the  eighteenth  century  there 
comes  a  series  of  great  Chancellors.  In  1705  Cowper,  in  1713  Har- 
court,  in  1725  King,  in  1733  Talbot,  in  1737  Hardwicke,  in  1757  . 
Northington,  in  1766  Camden,  in  1778  Thurlow,  in  1793  Lough- 
borough, in  1801  Eldon.  In  the  course  of  the  century  the  Chancery 
reports  improve ;  the  same  care  is  spent  upon  reporting  the  decrees 
of  the  Chancellors  that  has  long  been  spent  on  reporting  the  judg- 
ments of  the  judges  in  the  courts  of  common  law.  Gradually, 
too,  a  Chancery  bar  forms  itself,  that  is  to  say,  some  barristers 
begin  to  devote  themselves  altogether  to  practising  before  the 
Chancellor,  and  do  not  seek  for  work  elsewhere.  Lastly,  equity 
makes  its  way  into  the  text-books  as  a  part,  and  an  important  part, 
of  the  law  of  the  land. 

Gee  v.  Pritchard,  in  Chancery,  1818.    (2  Swanst.  402.) 

Lord  Eldon,  Chancellor,  said:  It  is  my  duty  to  submit  my  judg- 
ment to  the  authority  of  those  who  have  gone  before  me;  and  it 
will  not  be  easy  to  remove  the  weight  of  the  decisions  of  Lord 
Hardwicke  and  Lord  Apsley.  The  doctrines  of  this- Court  ought 
to  be  as  well  settled,  and  made  as  uniform  almost  as  those  of  the 
common  law,  laying  down  fixed  principles,  but  taking  care  that 
they  are  to  be  applied  according  to  the  circumstances  of  each  case. 
I  can  not  agree  that  the  doctrines  of  this  court  are  to  be  changed 


THE  DEVELOPMENT  OF  EQUITY  177 

with  every  succeeding  judge.  Nothing  would  inflict  on  me  greater 
pain,  in  quitting  this  place,  than  the  recollection  that  I  had  done 
anything  to  justify  the  reproach  that  the  equity  of  this  court  varies 
like  the  Chancellor's  foot. 

Blackstone,  Commentaries,  III,  434,  436. 

But  the  systems  of  jurisprudence  in  our  courts,  both  of  law  and 
equity,  are  now  equally  artificial  systems,  founded  on  the  same 
principles  of  justice  and  positive  law,  but  varied  by  different  usages 
in  the  forms  and  mode  of  their  proceedings ;  the  one  being  originally 
derived  (though  much  reformed  and  improved)  from  the  feodal 
customs  as  they  prevailed  in  different  ages  in  the  Saxon  and  Nor- 
man judicatures;  the  other  (but  with  equal  improvements)  from 
the  imperial  and  pontifical  formularies  introduced  by  their  clerical 
chancellors. 

Such,  then,  being  the  parity  of  law  and  reason  which  governs 
both  species  of  courts,  wherein  (it  may  be  asked)  does  their  essen- 
tial difference  consist?  It  principally  consists  in  the  different  modes 
of  administering  justice  in  each;  in  the  mode  of  proof,  the  mode  of 
trial,  and  the  mode  of  relief.  Upon  these,  and  upon  two  other 
accidental  grounds  of  jurisdiction,  which  were  formerly  driven  into 
those  courts  by  narrow  decisions  of  the  courts  of  law,  viz.,  the  true 
construction  of  securities  for  money  lent,  and  the  form  and  effect 
of  a  trust  or  second  use;  upon  these  main  pillars  hath  been  grad- 
ually erected  that  structure  of  jurisprudence  which  prevails  in  our 
courts  of  equity,  and  is  inwardly  bottomed  upon  the  same  substan- 
tial foundations  as  the  legal  system  which  hath  hitherto  been 
delineated  in  these  commentaries;  however  different  they  may 
appear  in  their  outward  form,  from  the  different  taste  of  their 
architects. 

1.  And,  first,  as  to  the  mode  of  proof.  When  facts,  or  their 
leading  circumstances,  rest  only  in  the  knowledge  of  the  party,  a 
court  of  equity  applies  itself  to  his  conscience,  and  purges  him  upon 
oath  with  regard  to  the  truth  of  the  transaction,  and,  that  being 
once  discovered,  the  judgment  is  the  same  in  equity  as  it  would 
have  been  at  law.  But,  for  want  of  this  discovery  at  law,  the  courts 
of  equity  have  acquired  a  concurrent  jurisdiction  with  every  court 
in  all  matters  of  account.  As  incident  to  accounts,  they  take  a 
concurrent  cognizance  of  the  administration  of  personal  assets,  con- 
sequently of  debts,  legacies,  the  distribution  of  the  residue,  and  the 
conduct  of  executors  and  administrators.    As  incident  to  accounts, 


178  HISTORY  OF  THE  COMMON  LAW 

they  also  take  the  concurrent  jurisdiction  of  tithes,  and  all  ques- 
tions relating  thereto;  of  all  dealings  in  partnership,  and  many 
other  mercantile  transactions;  and  so  of  bailiffs,  receivers,  factors, 
and  agents.  It  would  be  endless  to  point  out  all  the  se\-eral  avenues 
in  human  affairs,  and  in  this  commercial  age,  which  lead  to  or 
end  in  accounts. 

From  the  same  fruitful  source,  the  compulsive  discovery  upon 
oath,  the  courts  of  equity  have  acquired  a  jurisdiction  over  almost 
all  matters  of  fraud;  all  matters  in  the  private  knowledge  of  the 
party,  which,  though  concealed,  are  binding  in  conscience;  a.nd  all 
judgments  at  law,  obtained  through  such  fraud  or  concealment. 
And  this,  not  by  impeaching  or  reversing  the  judgment  itself,  but 
by  prohibiting  the  plaintiff  from  taking  any  advantage  of  a  judg- 
ment obtained  by  suppressing  the  truth;  and  which,  had  the  same 
facts  appeared  on  the  trial  as  now  are  discovered,  he  would  never 
have  attained  at  all. 

2.  As  to  the  mode  of  trial.  This  is  by  interrogatories  adminis- 
tered to  the  witnesses,  upon  which  their  depositions  are  taken  in 
writing,  wherever  they  happen  to  reside.  If,  therefore,  the  cause 
arises  in  a  foreign  country,  and  the  witnesses  reside  upon  the  spot; 
if,  in  causes  arising  in  England,  the  witnesses  are  abroad,  or  shortly 
to  leave  the  kingdom;  or  if  witnesses  residing  at  home  are  aged  or 
infirm;  any  of  these  cases  lays  a  ground  for  a  court  of  equity  to 
grant  a  commission  to  examine  them,  and  (in  consequence)  to 
exercise  the  same  jurisdiction,  which  might  have  been  exercised  at 
law,  if  the  witnesses  could  probably  attend. 

3.  With  respect  to  the  mode  of  relief.  The  want  of  a  more  speci- 
fic remedy,  than  can  be  obtained  in  the  courts  of  law,  gives  a  con- 
current jurisdiction  to  a  court  of  equity  in  a  great  variety  of  cases. 
To  instance  in  executory  agreements.  A  court  of  equity  will  com- 
pel them  to  be  carried  into  strict  execution,  unless  where  it  is 
improper  or  impossible:  instead  of  giving  damages  for  their  non- 
performance. And  hence  a  fiction  is  established,  that  what  ought 
to  be  done  shall  be  considered  as  being  actually  done,  and  shall 
relate  back  to  the  time  when  it  ought  to  have  been  done  originally: 
and  this  fiction  is  so  closely  pursued  through  all  its  consequences, 
that  it  necessarily  branches  out  into  many  rules  of  jurisprudence, 
which  form  a  certain  regular  system.  So  of  waste,  and  other  similar 
injuries,  a  court  of  equity  takes  a  concurrent  cognizance,  in  order  to 
prevent  them  by  injunction.  Over  questions  that  may  be  tried  at 
law,  in  a  great  multiijlicity  of  actions,  a  court  of  equity  assumes  a 


THE  DEVELOPMENT  OF  EQUITY  179 

jurisdiction,  to  prevent  the  expense  and  vexation  of  endless  liti- 
gations and  suits.  In  various  kinds  of  frauds  it  assumes  a  con- 
current jurisdiction,  not  only  for  the  sake  of  a  discovery,  but  of  a 
more  extensive  and  specific  relief:  as  by  setting  aside  fraudulent 
deeds,  decreeing  reconveyances,  or  directing  an  absolute  convey- 
ance merely  to  stand  as  a  security.  And  thus,  lastly,  for  the  sake 
of  a  more  beneficial  and  complete  relief  by  decreeing  a  sale  of  lands, 
a  court  of  equity  holds  plea  of  all  debts,  encumbrances,  and  charges 
that  may  afTect  it  or  issue  thereout. 

4.  The  true  construction  of  securities  for  money  lent  is  another 
fountain  of  jurisdiction  in  courts  of  equity.  When  they  held  the 
penalty  of  a  bond  to  be  the  form,  and  that  in  substance  it  was  only 
as  a  pledge  to  secure  the  repayment  of  the  sum  bona  fide  advanced, 
with  a  proper  compensation  for  the  use,  they  laid  the  foundation 
of  a  regular  series  of  determinations,  which  have  settled  the  doc- 
trine of  personal  pledges  or  securities,  and  are  equally  applicable  to 
mortages  of  real  property.  The  mortgagor  continues  owner  of 
the  land,  the  mortgagee  of  the  money  lent  upon  it;  but  this  owner- 
ship is  mutually  transferred,  and  the  mortgagor  is  barred  from 
redemption  if,  when  called  upon  by  the  mortgagee,  he  does  not 
redeem  within  a  time  limited  by  the  court;  or  he  may,  when  out 
of  possession,  be  barred  by  length  of  time,  by  analogy  to  the  statute 
of  limitations. 

5.  The  form  of  a  trust,  or  second  use,  gives  the  courts  of  equity 
an  exclusive  jurisdiction  as  to  the  subject-matter  of  all  settlements 
and  devises  in  that  form,  and  of  all  the  long  terms  created  in  the 
present  complicated  mode  of  conveyancing.  .  This  is  a  very  ample 
source  of  jurisdiction:  but  the  trust  is  governed  by  very  nearly 
the  same  rules  as  would  govern  the  estate  in  a  court  of  law,  if  no 
trustee  was  interposed:  and  by  a  regular  positive  system  estab- 
lished in  the  courts  of  equity,  the  doctrine  of  trusts  is  now  reduced 
to  as  great  a  certainty  as  that  of  legal  estates  in  the  courts  of  the 
common  law. 

These  are  the  principal  (for  I  omit  the  minuter)  grounds  of  the 
jurisdiction  at  present  exercised  in  our  courts  of  equity;  which 
differ,  we  see,  very  considerably  from  the  notions  entertained  by 
strangers,  and  even  by  those  courts  themselves  before  they  arrived 
to  maturity;  as  appears  from  the  principles  laid  down,  and  the 
jealousies  entertained  of  their  abuse,  by  our  early  juridical  writers 
cited  in  a  former  page;  and  which  have  been  implicitly  received 
and  handed  down  by  subsequent  compilers,  without  attending  to 


180  HISTORY  OF  THE  COMMON  LAW 

those  gradual  accessions  and  derelictions,  by  which  in  the  course 
of  a  century  this  mighty  river  hath  imperceptibly  shifted  its  chan- 
nel. Lambard  in  particular,  in  the  reign  of  Queen  Elizabeth,  lays 
it  down,  that  "equity  should  not  be  appealed  unto,  but  only  in 
rare  and  extraordinary  matters:  and  that  a  good  chancellor  will 
not  arrogate  authority  in  every  complaint  that  shall  be  brought 
before  him  upon  whatsoever  suggestion:  and  thereby  both  o\-er- 
throw  the  authority  of  the  courts  of  common  law,  and  bring  upon 
men  such  a  confusion  and  uncertainty,  as  hardly  any  man  should 
know  how  or  how  long  to  hold  his  own  assured  to  him."  And  cer- 
tainly, if  a  court  of  equity  were  still  at  sea,  and  floated  upon  the 
occasional  opinion  which  the  judge  who  happened  to  preside  might 
entertain  of  conscience  in  every  particular  case,  the  inconvenience 
that  would  arise  from  this  uncertainty  would  be  a  worse  evil  than 
any  hardship  that  could  follow  from  rules  too  strict  and  inflexible. 
Its  powers  would  have  become  too  arbitrary  to  have  been  endured  in 
a  country  like  this,  which  boasts  of  being  governed  in  all  respects 
by  law  and  not  by  will.  But  since  the  time  when  Lambard  wrote, 
a  set  of  great  and  eminent  lawyers,  who  have  successively  held  the 
great  seal,  have  by  degrees  erected  the  system  of  relief  adminis- 
tered by  a  court  of  equity  into  a  regular  science,  which  cannot  be 
attained  without  study  and  experience,  any  more  than  the  science 
of  law;  but  from  which,  when  understood,  it  may  be  known  what 
remedy  a  suitor  is  entitled  to  expect,  and  by  what  mode  of  suit,  as 
readily  and  with  as  much  precision  in  a  court  of  equity  as  in  a  court 
of  law. 

In  re  Hallett's  Estate,  Court  of  Appeai.,  1879  (13  Ch.  D. 
690,  710). 
Jessel,  M.  R.,  said:  The  moment  you  establish  the  fiduciary  rela- 
tion, the  modern  rules  of  Equity,  as  regards  following  trust  money, 
apply.  I  intentionally  say  modern  rules,  because  it  must  not  be 
forgotten  that  the  rules  of  Courts  of  Equity  are  not,  like  the  rules 
of  the  Common  Law,  supposed  to  have  been  established  from  time 
immemorial.  It  is  perfectly  well  known  that  they  have  been 
established  from  time  to  time  —  altered,  improved,  and  refined 
from  time  to  time.  In  many  cases  we  know  the  names  of  the 
Chancellors  who  invented  them.  No  doubt  they  were  invented 
for  the  purpose  of  securing  the  better  administration  of  justice, 
but  still  they  were  invented.  Take  such  things  as  these:  the 
separate  use  of  a  married  woman,  the  restraint  on  alienation,  the 


THE  LAW  MERCHANT  181 

modern  rule  against  perpetuities,  and  the  rules  of  equitable  waste. 
We  can  name  the  Chancellors  who  first  invented  them,  and  state  the 
date  when  they  were  first  introduced  into  Equity  jurisprudence; 
and,  therefore,  in  cases  of  this  kind,  the  older  precedents  in  Equity 
are  of  very  little  value.  The  doctrines  are  progressive,  refined,  and 
improved ;  and  if  we  want  to  know  what  the  rules  of  Equity  are, 
we  must  look,  of  course,  rather  to  the  more  modern  than  the  more 
ancient  cases. 

4.     THE  LAW  MERCHANT 

Carter,  Early  History  of  the  Law  Merchant  in  England, 
17  Law  Quar.  Rev.  232. 

Although  the  custom  of  the  King's  Court  became  the  common 
law  of  the  land,  there  were  three  classes  of  persons  who  were  in  a 
varying  degree  exempt  from  it,  the  priest,  the  Jew,  and  the  mer- 
chant. The  relation  of  the  priest  to  the  Canon  law  of  the  Church 
has  been  treated  of  authoritatively  by  Professor  Maitland;  the 
place  taken  by  the  Jew  will  be  further  elucidated,  we  hope,  by  the 
promised  volume  of  the  Selden  Society  on  the  Jewish  Plea  Rolls; 
the  position  of  the  merchant  is  still  in  need  of  authentic  treatment. 
We  know,  however,  that  side  by  side  with  the  custom  of  the  King's 
Court  existed  the  "custom  of  merchants,"  whatever  that  was.  The 
reasons  for  this  obscurity  are  twofold ;  few  merchant  cases  came 
up  for  decision  in  the  King's  Courts,  and  the  local  records  such  as 
those  of  the  Piepoudre  Court  of  Bristol,  the  great  western  port  of 
the  kingdom,  have  most  unfortunately  been  lost  or  destroyed. 

And  yet  by  piecing  together  fragments  of  evidence  collected  here 
and  there,  we  can  arrive  at  an  opinion  to  the  effect  that  there  was 
a  definite  body  of  mercantile  law,  slightly  affected  perhaps  by  local 
variations,  which  was  recognized  in  this  country  and  in  the  ports 
of  Europe,  and  that  it  was  administered  there  and  here  in  Courts 
of  similar  character  supported  by  the  royal  authority.  It  was  really 
Law,  and  it  was  really  International.  The  history  of  the  law  mer- 
chant in  this  country  can  shortly  be  stated.  It  was  from  the  first 
administered  in  local  and  popular  Courts  of  mercatores  et  marinarii, 
and  was  intimately  connected  with  the  King  in  Council.  There  is 
statutory  recognition  of  this  connection  in  the  Statute  of  the 
Staple.  The  Court  of  Admiralty  after  a  struggle  usurped  the  juris- 
diction, the  common  law  Courts  in  turn  destroyed  the  Admiralty 
jurisdiction  by  repeated  prohibitions,  while  the  merchants,  dissatis- 
fied with  the  illiberal  policy  of  the  common  lawyers,  might  have 


182  HISTORY  OF  THE  COMMON  LAW 

resorted  to  the  Courts  of  Chancery  whose  doctrines  and  practice 
were  very  similar  to  their  own,  had  not  Lord  Mansfield  appeared 
to  create  the  mercantile  law  of  this  country. 

Duller  v.  Crips,  Queen's  Bench,  1704.     (6  Mod.  29.) 

A  note  was  in  this  form:  "I  promise  to  pay  John  Smith,  or  order, 
the  sum  of  one  hundred  pounds,  on  account  of  wine  had  from  him." 
John  Smith  endorses  this  note  to  another;  the  indorsee  brings 
an  action  against  him  that  drew  this  note,  and  declares  upon  the 
custom  of  merchants  as  upon  a  bill  of  exchange. 

A  motion  was  made  in  arrest  of  judgment  upon  the  authority 
of  the  case  of  Martin  v.  Clarke. 

But  Brotherick  would  distinguish  this  case  from  that:  for  there 
the  party  to  whom  the  note  was  originally  made  brought  the  action, 
but  here  it  is  by  the  indorsee;  and  he  that  gave  this  note  did, 
by  the  tenor  thereof,  make  it  assignable  or  negotiable  by  the  words 
"or  order,"  which  amount  to  a  promise  or  undertaking  to  pay  it 
to  any  whom  he  should  appoint,  and  the  indorsement  is  an  appoint- 
ment to  the  plaintiff. 

Holt,  C.  J.:  I  remember  when  actions  upon  inland  bills  of  ex- 
change did  first  begin;  and  there  they  laid  a  particular  custom 
between  London  and  Bristol,  and  it  was  an  action  against  the 
acceptor.  The  defendant's  counsel  would  put  them  to  prove  the 
custom;  at  which  Hale,  C.  J.,  who  tried  it,  laughed,  and  said 
they  had  a  hopeful  case  of  it.  And  in  my  Lord  North's  time  it 
was  said  that  the  custom  in  that  case  was  part  of  the  common  law 
of  England ;  and  these  actions  since  became  frequent,  as  the  trade 
of  the  nation  did  increase;  and  all  the  difference  between  foreign 
bills  and  inland  bills  is,  that  foreign  bills  must  be  protested  before 
a  public  notary  before  the  drawer  can  be  charged,  but  inland  bills 
need  no  protest,  and  the  notes  in  question  are  only  an  invention 
of  the  goldsmiths  in  Lombard  street,  who  had  a  mind  to  make 
a  law  to  bind  all  those  that  did  deal  with  them;  and  sure  to  allow 
such  a  note  to  carry  any  lien  with  it  were  to  turn  a  piece  of  paper, 
which  is  in  law  but  evidence  of  a  parol  contract,  into  a  spe- 
cialty. And,  besides,  it  would  impower  one  to  assign  that  to 
another  which  he  could  not  hav^e  himself;  for  since  he  to  whom 
this  note  was  made  could  not  ha\'e  this  action,  how  can  his  as- 
signee have  it?  And  these  notes  are  not  in  the  nature  of  bills 
of  exchange;  for  the  reason  of  the  custom  of  bills  of  exchange  is 
for  the  expedition  of  trade  and  its  safety;  and  likewise  it  hinders 


THE  LAW  MERCHANT  183 

the  exportation  of  money  out  of  the  reahn.  He  said,  if  the  indorsee 
had  brought  this  action  against  the  indorser,  it  might  peradventure 
He;  for  the  indorsement  may  be  said  to  be  tantamount  to  the 
drawing  of  a  new  bill  for  so  much  as  the  note  is  for,  upon  the  person 
that  gave  the  note;  or  he  may  sue  the  first  drawer  in  the  name 
of  the  indorser,  and  convert  the  money,  when  recovered,  to  his  own 
use;  for  the  indorsement  amounts  at  least  to  an  agreement  that 
the  indorsee  should  sue  for  money  in  the  name  of  the  indorser, 
and  receive  it  to  his  own  use;  and,  besides,  it  is  a  good  authority 
to  the  original  drawer  to  pay  the  money  to  the  indorsee. 

And  Powell,  J.,  cited  one  case,  where  a  plaintiff  had  judgment 
upon  a  declaration  of  this  kind  in  the  Common  Pleas;  and  that 
my  Lord  Treby  was  very  earnest  for  it,  as  a  mighty  convenience  for 
trade;  but  that,  when  they  had  considered  well  the  reasons  why  it 
was  doubted  here,  they  began  to  doubt,  too. 

The  whole  court  seemed  clear  for  staying  judgment. 

At  another  day.  Holt,  C.  J.,  declared  that  he  had  desired  to  speak 
with  two  of  the  most  famous  merchants  in  London,  to  be  informed 
of  the  mighty  ill  consequences  that  it  was  pretended  would  ensue 
by  obstructing  this  course;  and  that  they  had  told  him  it  was  very 
frequent  with  them  to  make  such  notes,  and  that  they  looked  upon 
them  as  bills  of  exchange,  and  that  they  had  been  used  for  a  matter 
of  thirty  years,  and  that  not  only  notes,  but  bonds  for  money,  were 
transferred  frequently,  and  indorsed  as  bills  of  exchange.  Indeed, 
I  agree,  a  bill  of  exchange  may  be  made  between  two  persons  with- 
out a  third;  and,  if  there  be  such  a  necessity  of  dealing  that  way, 
why  do  not  dealers  use  that  way  which  is  legal?  and  may  be  this; 
as,  if  A.  has  money  to  lodge  in  B.'s  hands,  and  would  have  a  nego- 
tiable note  for  it,  it  is  only  saying  thus,  "Mr.  B.,  pay  me,  or  order, 
so  much  money  value  to  yourself,"  and  signing  this,  and  B.  accept- 
ing it;  or  he  may  take  the  common  note  and  say  thus,  "For  value 
to  yourself,  pay  me  (or  indorsee)  so  much,"  and  good. 

And  the  court  at  last  took  the  vacation  to  consider  of  it. 

Blackstone,  Commentaries,  I,  75  (1765). 

To  this  head  may  most  properly  be  referred  a  particular  system 
of  customs  used  only  among  one  set  of  the  king's  subjects,  called 
the  custom  of  merchants,  or  lex  mercatoria;  which,  however 
different  from  the  general  rules  of  the  common  law,  is  yet  in- 
grafted into  it,  and  made  a  part  of  it;  being  allowed,  for  the 
benefit  of  trade,  to  be  of   the   utmost  validity  in  all  commercial 


184  HISTORY  OF  THE  COMMON  LAW 

transactions;  for  it  is  a  maxim  of  law,  that  "cuilibet  in  sua  arte 
credeiidum  est." 

The  rules  relating  to  particular  customs  regard  either  the  proof 
of  their  existence ;  their  legality  when  proved ;  or  their  usual  method 
of  allowance.     And  first  we  will  consider  the  rules  of  proof: 

As  to  gavelkind,  and  borough-English,  the  law  takes  particular 
notice  of  them,  and  there  is  no  occasion  to  prove  that  such  customs 
actually  exist,  but  only  that  the  lands  in  question  are  subject  there- 
to. All  other  private  customs  must  be  particularly  pleaded,  and  as 
well  the  existence  of  such  customs  must  be  shown,  as  that  the  thing 
in  dispute  is  within  the  custom  alleged.  The  trial  in  both  cases 
(both  to  show  the  existence  of  the  custom,  as,  "that  in  the  manor 
of  Dale,  lands  shall  descend  only  to  the  heirs  male,  and  never  to  the 
heirs  female;"  and  also  to  show  "that  the  lands  in  question  are 
within  that  manor")  is  by  a  jury  of  twelve  men,  and  not  by  the 
judges;  except  the  same  particular  custom  has  been  before  tried, 
determined,  and  recorded  in  the  same  court. 

WooDDEssoN,   Elements   of  Jurisprudence,  Ixxix   (1792). 

But  the  branch  of  the  law  of  nations,  which  there  have  been  the 
most  frequent  occasions  of  regarding,  especially  since  the  great  ex- 
tension of  commerce,  and  intercourse  with  foreign  traders,  is  called 
the  law  of  Merchants.  This  system  of  generally  received  law  has 
been  admitted  to  decide  controversies  touching  bills  of  exchange, 
policies  of  insurance,  and  other  mercantile  transactions,  both  where 
the  subjects  of  any  foreign  power,  and  (for  the  sake  of  uniformity) 
where  natives  of  this  reahn  only,  ha\e  been  interested  in  the  event. 
Its  doctrines  have,  of  late  years,  been  wonderfully  elucidated,  and 
reduced  to  rational  and  firm  principles,  in  a  series  of  litigations  be- 
fore a  judge,  long  celebrated  for  his  great  talents,  and  extensive 
learning  in  general  jurisprudence,  and  still  more  venerable  for  his 
animated  love  of  justice.  Under  his  able  conduct  and  direction, 
very  many  of  these  causes  have  been  tried  by  a  jury  of  merchants 
of  London;  and  such  questions  of  this  kind  as  ha\e  come  before 
the  Court  of  King's  Bench  in  term  time,  are  laid  before  the  public 
by  a  copious  and  elaborate  compiler. 

The  law  of  merchants,  as  far  as  it  depends  on  custom,  con- 
stitutes a  part  of  the  voluntary,  not  of  the  necessary,  law  of 
nations.  It  may,  therefore,  so  far  as  it  is  merely  positive,  be 
altered  by  any  municipal  legislature,  where  its  own  subjects 
only  are  concerned. 


THE  LAW  MERCHANT  185 

VVooDDESsoN,  Lectures  on  the  Law  of  England,  HI,  53 
(1792). 
By  the  custom  of  merchants,  he  to  whom  a  bill  is  payable,  com- 
monly called  the  holder,  ought,  within  a  reasonable  time  after  his 
receipt  of  it,  to  present  the  bill  to  him  to  whom  it  is  directed,  for 
his  acceptance,  and  such  person  ought  also,  within  a  reasonable 
time,  to  accept  the  bill  or  refuse  payment  of  it;  and  reasonable 
notice  ought  to  be  given  to  drawers  and  indorsers  of  nonpayment 
or*  nonacceptance  by  those  liable  in  the  first  instance. 

The  declaration  in  actions  on  bills  of  exchange,  after  stating  the 
particular  facts,  adds,  "by  reason  whereof,  and  by  the  custom  of 
merchants,  the  defendant  became  liable  to  pay,  and,  being  so  liable, 
undertook  and  faithfully  promised  to  pay  the  contents  of  the  bill." 

On  the  other  hand,  if  two  persons  draw  a  bill  of  exchange  pay- 
able "to  our  order,"  this,  indeed,  was  thought  by  the  court  of  King's 
Bench  to  render  them  so  far  partners  as  to  that  transaction  (though 
admitted  not  to  be  so  otherwise,)  that  an  indorsement  by  one  of 
them  was  binding  and  effectual:  but  the  cause  was  finally  deter- 
mined by  a  special  jury  in  London,  who  were  decidedly  of  opinion, 
that,  by  the  usage  of  merchants  and  bankers,  the  indorsement  ought 
to  have  been  by  both  the  payees. 

In  what  cases,  and  how  far,  insurers  shall  be  liable,  is  governed 
chiefly  by  the  custom  of  merchants;  and  some  at  least  of  that  pro- 
fession are  usually  impanelled  on  the  jury  to  try  these  suits. 

Christian's  Note  to  I   Bl.  Comm.  75  (1803). 

The  lex  mercatoria,  or  the  custom  of  merchants,  like  the  lex  et 
consiietudo  parliamenti,  describes  only  a  great  division  of  the  law 
of  England.  The  laws  relating  to  bills  of  exchange,  insurance, 
and  all  mercantile  contracts,  are  as  much  the  general  law  of  the 
land  as  the  laws  relating  to  marriage  or  murder.  But  the  expres- 
sion has  very  unfortunately  led  merchants  to  suppose  that  all  their 
crude  and  new-fangled  fashions  and  devices  immediately  become 
the  law  of  the  land;  a  notion  which,  perhaps,  has  been  too  much 
encouraged  by  our  courts.  Merchants  ought  to  take  their  law  from 
the  courts,  and  not  the  courts  from  merchants;  and  when  the  law 
is  found  inconvenient  for  the  purposes  of  extended  commerce,  ap- 
plication ought  to  be  made  to  parliament  for  redress.     Merchants 


186  HISTORY  OF  THE  COMMON  LAW 

ought  to  be  considered  in  no  higher  degree  than  their  own  legis- 
lators or  judges  upon  subjects  of  commerce,  than  farmers  or  sports- 
men in  questions  upon  leases  or  the  game-laws.  For  the  position 
of  Lord  Coka  ought  never  to  be  forgotten:  —  "That  the  common 
law  has  no  controller  in  any  part  of  it,  but  the  high  court  of 
parliament;  and  if  it  be  not  abrogated  or  altered  by  parliament,  it 
remains  still,  as  Littleton  saith."  (Co.  Litt.  115).  This  is  agree- 
able to  the  opinion  of  Mr.  Justice  Foster,  who  maintains  that  "the 
custom  of  merchants  is  the  general  law  of  the  kingdom,  and  there- 
fore ought  not  to  be  left  to  a  jury  after  it  has  been  settled  by  judi- 
cial determinations." 

Lord  Campbell,  Lives  of  the  Chief  Justices,  3  ed.,  HI,  274 
(Life  of  Lord  Mansfield). 
In  the  reign  of  George  II.,  England  had  grown  into  the  greatest 
manufacturing  and  commercial  country  in  the  world,  while  her 
jurisprudence  had  by  no  means  been  expanded  or  developed  in  the 
same  proportion.  The  legislature  had  literally  done  nothing  to 
supply  the  insufficiency  of  feudal  law  to  regulate  the  concerns  of  a 
trading  population;  and  the  Common  law  judges  had,  generally 
speaking,  been  too  unenlightened  and  too  timorous  to  be  of  much 
service  in  improving  our  code  by  judicial  decisions.  Hence,  when 
questions  necessarily  arose  respecting  the  buying  and  selling  of 
goods,  —  respecting  the  affreightment  of  ships,  —  respecting  marine 
insurances,  —  and  respecting  bills  of  exchange  and  promissory  notes, 
no  one  knew  how  they  were  to  be  determined.  Not  a  treatise  had 
been  published  upon  any  of  these  subjects,  and  no  cases  respecting 
them  were  found  in  our  books  of  reports,  —  which  swarmed  with 
decisions  about  lords  and  villeins,  —  about  marshalling  the  cham- 
pions upon  the  trial  of  a  writ  of  right  by  battle,  —  and  about  the 
customs  of  manors,  whereby  an  unchaste  widow  might  save  the 
forfeiture  of  her  dower  by  riding  on  a  black  ram,  and  in  plain  lan- 
guage confessing  her  offence.  Lord  Hardwicke  had  done  much 
to  improve  and  systematise  Equity  —  but  proceedings  were  still  car- 
ried on  in  the  courts  of  Common  Law  much  in  the  same  style  as  in 
the  days  of  Sir  Robert  Tresilian  and  Sir  William  Gascoigne.  Mer- 
cantile questions  were  so  ignorantly  treated  when  they  came  into 
Westminster  Hall,  that  they  were  usually  settled  by  private  arbi- 
tration among  the  merchants  themselves.  If  an  action  turning 
upon  a  mercantile  question  was  brought  into  a  court  of  law,  the 
judge  submitted  it  to  the  jury,  who  determined  it  according  to 


THE  LAW  MERCHANT  187 

their  own  notions  of  what  was  fair,  and  no  general  rule  was  laid 
down  which  could  afterwards  be  referred  to  for  the  purpose  of 
settling  similar  disputes. 

He  [Lord  Mansfield]  saw  the  noble  field  that  lay  before  him,  and 
he  resolved  to  reap  the  rich  harvest  of  glory  which  it  presented  to 
him.  Instead  of  proceeding  by  legislation,  and  attempting  to 
codify  as  the  French  had  done  very  successfully  in  the  Coustumier 
de  Paris,  and  the  Ordinance  de  la  Marine,  he  wisely  thought  it 
more  according  to  the  genius  of  our  institutions  to  introduce  his 
improvements  gradually  by  way  of  judicial  decision.  As  respected 
commerce,  there  were  no  vicious  rules  to  be  overturned, — he  had 
only  to  consider  what  was  just,  expedient,  and  sanctioned  by  the 
experience  of  nations  farther  advanced  in  the  science  of  juris- 
prudence. His  plan  seems  to  have  been  to  avail  himself,  as  often 
as  opportunity  admitted,  of  his  ample  stores  of  knowledge,  acquired 
from  his  study  of  the  Reman  civil  law,  and  of  the  juridical  writers 
produced  in  modern  times,  by  France,  Germany,  Holland,  and 
Italy  —  not  only  in  doing  justice  to  the  parties  litigating  before 
him,  but  in  settling  with  precision  and  upon  sound  principles  a 
general  rule,  afterwards  to  be  quoted  and  recognized  as  governing 
all  similar  cases.  Being  still  in  the  prime  of  life,  with  a  vigorous 
constitution,  he  no  doubt  fondly  hoped  that  he  might  live  to  see 
these  decisions,  embracing  the  whole  scope  of  commercial  trans- 
actions, collected  and  methodized  into  a  system  which  might  bear 
his  name.  When  he  had  ceased  to  preside  in  the  Court  of  King's 
Bench,  and  had  retired  to  enjoy  the  retrospect  of  his  labours,  he  read 
the  following  just  eulogy  bestowed  upon  them  by  Mr.  Justice  Buller, 
in  giving  judgment  in  the  important  case  of  Lickharrow  v.  Maso7i, 
respecting  the  effect  of  the  indorsement  of  a  bill  of  lading: — 

"Within  these  thirty  years  the  commercial  law  of  this  country 
has  taken  a  very  different  turn  from  what  it  did  before.  Lord 
Hardwicke  himself  was  proceeding  with  great  caution,  not  estab- 
lishing any  general  principle,  but  decreeing  on  all  the  circumstances 
put  together.  Before  that  period  we  find  that,  in  courts  of  law,  all 
the  evidence  in  mercantile  cases  was  thrown  together;  they  were 
left  generally  to  a  jury;  and  they  produced  no  general  principle. 
From  that  time,  we  all  know,  the  great  study  has  been  to  find  some 
certain  general  principle,  which  shall  be  known  to  all  mankind,  not 
only  to  rule  the  particular  case  then  under  consideration,  but  to 
serve   as   a   guide   for  the  future.     Most  of  us  have  heard  these 


188  HISTORY  OF  THE  COMMON  LAW 

principles  stated,  reasoned  upon,  enlarged,  and  explained,  till  we  have 
been  lost  in  admiration  at  the  strength  and  stretch  of  the  under- 
standing. And  I  should  be  very  sorry  to  find  myself  under  a  neces- 
sity of  differing  from  any  case  upon  this  subject  which  has  been 
decided  by  Lord  Mansfield,  who  may  be  truly  said  to  be  the  founder 
of  the  commercial  law  of  this  country." 

I  naturally  begin  with  the  law  of  Lnsurance, —  almost  his  own 
creation;  and  I  might  copy  the  whole  of  a  copious  treatise  on  the 
subject  by  Mr.  Justice  Park,  which  is  composed  almost  entirely  of 
his  decisions  and  dicta. 

Likewise  with  regard  to  bills  of  exchange  and  promissory  notes, 
Lord  Mansfield  first  promulgated  many  rules  that  now  appear  to 
us  to  be  as  certain  as  those  which  guide  the  planets  in  their  orbits. 
For  example,  it  was  till  then  uncertain  whether  the  second  indorsee 
of  a  bill  of  exchange  could  sue  his  iminediate  indorser  without 
having  previously  demanded  payment  from  the  drawer;  and  it  was 
said  three  Chief  Justices  had  ruled  the  point  one  way  at  Nisi  Prius, 
and  as  many  Chief  Justices  had  ruled  it  the  other  way. 

Goodwin  v.  Robarts,  Exchequer,  1875  (L.  R.  10  Ex.  337,  346). 
Cockburn,  C.  J.:  Having  given  the  fullest  consideration  to  this 
argument,  we  are  of  opinion  that  it  cannot  prevail.  It  is  founded 
on  the  view  that  the  law  merchant  thus  referred  to  is  fixed  and 
stereotyped,  and  incapable  of  being  expanded  and  enlarged  so  as 
to  meet  the  wants  and  requirements  of  trade  in  the  varying  circum- 
stances of  commerce.  It  is  true  that  the  law  merchant  is  some- 
times spoken  of  as  a  fixed  body  of  law,  forming  part  of  the  common 
law,  and  as  it  were  coeval  with  it.  But  as  a  matter  of  legal  history, 
this  view  is  altogether  incorrect.  The  law  merchant  thus  spoken 
of  with  reference  to  bills  of  exchange  and  other  negotiable  securi- 
ties, though  forming  part  of  the  general  body  of  the  lex  mercatona, 
is  of  comparatively  recent  origin.  It  is  neither  more  nor  less  than 
the  usages  of  merchants  and  traders  in  the  different  departments 
of  trade,  ratified  by  the  decisions  of  Courts  of  law,  which,  upon 
such  usages  being  proved  before  them,  have  adopted  them  as 
settled  law  with  a  view  to  the  interests  of  trade  and  the  public 
convenience,  the  Court  proceeding  herein  on  the  well-known  prin- 
ciple of  law  that,  with  reference  to  transactions  in  the  difi'erent 


THE  LAW  MERCHANT  189 

departments  of  trade,  Courts  of  law,  in  giving  effect  to  the  con- 
tracts and  dealings  of  the  parties,  will  assume  that  the  latter  have 
dealt  with  one  another  on  the  footing  of  any  custom  or  usage  pre- 
vailing generally  in  the  particular  department.  By  this  process, 
what  before  was  usage  only,  unsanctioned  by  legal  decision,  has 
become  engrafted  upon,  or  incorporated  into,  the  common  law,  and 
may  thus  be  said  to  form  part  of  it.  "When  a  general  usage  has 
been  judicially  ascertained  and  established,"  says  Lord  Campbell, 
'inBrandao  v.Barnett,^  "it  becomes  a  part  of  the  law  merchant,  which 
Courts  of  justice  are  bound  to  know  and  recognise." 

Bills  of  exchange  are  known  to  be  of  comparatively  modern  origin, 
having  been  first  brought  into  use,  so  far  as  is  at  present  known, 
by  the  Florentines  in  the  twelfth,  and  by  the  Venetians  about  the 
thirteenth  century.  The  use  of  them  gradually  found  its  way  into 
France,  and,  still  later  and  but  slowly,  into  England.  We  find  it 
stated  in  a  law  tract,  by  Mr.  Macleod,  entitled  "Specimen  of  a 
Digest  of  the  Law  of  Bills  of  Exchange,"  printed,  we  believe, 
as  a  report  to  the  government,  but  which,  from  its  research  and 
ability,  deserves  to  be  produced  in  a  form  calculated  to  insure  a 
wider  circulation,  that  Richard  Malynes,  a  London  merchant,  who 
published  a  work  called  the  Lex  Mercatoria,  in  1622,  and  who  gives 
a  full  account  of  these  bills  as  used  by  the  merchants  of  Amster- 
dam, Hamburg,  and  other  places,  expressly  states  that  such  bills 
were  not  used  in  England.  There  is  reason  to  think,  however, 
that  this  is  a  mistake.  Mr.  Macleod  shows  that  promissory  notes, 
payable  to  bearer,  or  to  a  man  and  his  assigns,  were  known  in  the 
time  of  Edward  IV.  Indeed,  as  eaily  as  the  statute  of  3  Rich.  2, 
c.  3,  bills  of  exchange  are  referred  to  as  a  means  of  conveying  money 
out  of  the  realm,  though  not  as  a  process  in  use  among  English 
merchants.  But  the  fact  that  a  London  merchant  writing  expressly 
on  the  law  merchant  was  unaware  of  the  use  of  bills  of  exchange  in 
this  country,  shows  that  that  use  at  the  time  he  wrote  must  have 
been  limited.  According  to  Professor  Story,  who  herein  is,  no 
doubt,  perfectly  right,  "the  introduction  and  use  of  bills  of  exchange 
in  England,"  as  indeed  it  was  everywhere  else,  "seems  to  have  been 
founded  on  the  mere  practice  of  merchants,  and  gradually  to  have 
acquired  the  force  of  a  custom."  With  the  development  of  Eng- 
lish commerce  the  use  of  these  most  convenient  instruments  of 
commercial   trafific  would   of   course   increase,   yet,   according   to 

1 12  CI.  &  F.  at  p.  805. 


190  HISTORY  OF  THE  COMMON  LAW 

]\Ir.  Chitty,  the  earliest  case  on  the  subject  to  be  found  in  the  English 
books  is  that  of  Martin  v.  Boure,^  in  the  first  James  I.  Up  to  this 
time  the  practice  of  making  these  bills  negotiable  by  indorsement 
had  been  unknown,  and  the  earlier  bills  are  found  to  be  made  pay- 
able to  a  man  and  his  assigns,  though  in  some  instances  to  bearer. 
But  about  this  period,  that  is  to  say,  at  the  close  of  the  sixteenth 
or  the  commencement  of  the  seventeenth  century,  the  practice  of 
making  bills  payable  to  order,  and  transferring  them  by  indorse- 
ment, took  its  rise.  Hartmann,  in  a  very  learned  work  on  Bills  of 
Exchange,  recently  published  in  Germany,  states  that  the  first 
known  mention  of  the  indorsement  of  these  instruments  occurs 
in  the  Neapolitan  Pragmatica  of  1607.  Savary,  cited  by  Mons. 
Nouguier,  in  his  work  '^Des  lettres  dz  change,''  had  assigned  to  it  a 
later  date,  namely  1620.  From  its  obvious  convenience,  this  prac- 
tice speedily  came  into  general  use,  and,  as  part  of  the  general  cus- 
tom of  merchants,  received  the  sanction  of  our  Courts.  At  first 
the  use  of  bills  of  exchange  seems  to  have  been  confined  to  foreign 
bills  between  English  and  foreign  merchants.  It  was  afterwards 
extended  to  domestic  bills  between  traders,  and  finally  to  bills  of 
all  persons,  whether  traders  or  not:  see  Chitty  on  Bills,  8th  ed., 
p.  13. 

In  the  meantime,  promissory  notes  had  also  come  into  use,  differ- 
ing herein  from  bills  of  exchange  that  they  were  not  drawn  upon  a 
third  party,  but  contained  a  simple  promise  to  pay  by  the  maker, 
resting,  therefore,  upon  the  security  of  the  maker  alone.  They 
were  at  first  made  payable  to  bearer,  but  when  the  practice  of  mak- 
ing bills  of  exchange  payable  to  order,  and  making  them  transfer- 
able by  indorsement,  had  once  become  established,  the  practice 
of  making  promissory  notes  payable  to  order,  and  of  transferring 
them  by  indorsement,  as  had  been  done  with  bills  of  exchange, 
speedily  prevailed.  And  for  some  time  the  courts  of  law  acted  upon 
the  usage  with  reference  to  promissory  notes,  as  well  as  with  refer- 
ence to  bills  of  exchange. 

In  1680,  in  the  case  of  Shelden  v.  Ilentley'^  an  action  was  brought 
on  a  note  under  seal  by  which  the  defendant  promised  to  pay  to 
hearer  100  /.,  and  it  was  objected  that  the  note  was  void  because 
not  made  payable  to  a  specific  person.  But  it  was  said  by  the  Court, 
"Traditio  facit  chartam  loqui,  and  by  the  delivery  he  (the  maker) 

1  Cro.  Jac.  6. 

2  2  Show.  160. 


THE  LAW  MERCHANT  191 

expounds  the  person  before  meant;  as  when  a  merchant  promises 
to  pay  to  the  bearer  of  the  note,  anyone  that  brings  the  note  shall 
be  paid."  Jones,  J.,  said  that  "it  was  the  custom  of  merchants 
that  made  that  good."  In  Bromwich  v.  Lloyd  ^  the  plaintiff  declared 
upon  the  custom  of  merchants  in  London,  on  a  note  for  money  pay- 
able on  demand,  and  recovered;  and  Treby,  C.  J.,  said  that  "bills 
of  exchange  were  originally  between  foreigners  and  merchants  trad- 
ing with  the  English ;  afterwards,  when  such  bills  came  to  be  more 
frequent,  then  they  were  allowed  between  merchants  trading  in 
England,  and  afterwards  between  any  traders  whatsoever,  and  now 
between  any  persons,  whether  trading  or  not;  and,  therefore,  the 
plaintiff  need  not  allege  any  custom,  for  now  those  bills  were  of 
that  general  use  that  upon  an  indebitatus  assumpsit  they  may  be 
given  in  evidence  upon  the  trial."  To  which  Powell,  J.,  added, 
"On  indebitatus  assumpsit  for  money  received  to  the  use  of  the 
plaintiff  the  bill  may  be  left  to  the  jury  to  determine  whether  it 
was  given  for  value  received." 

In  Williams  v.  Williams,^  where  the  plaintiff  brought  his  action 
as  indorsee  against  the  payee  and  indorser  of  a  promissory  note, 
declaring  on  the  custom  of  merchants,  it  was  objected  on  error, 
that  the  note  having  been  made  in  London  the  custom,  if  any, 
should  have  been  laid  as  the  custom  of  London.  It  was  answered 
"that  this  custom  of  merchants  was  part  of  the  common  law,  and 
the  Court  would  take  notice  of  it  ex  officio;  and,  therefore,  it  was 
needless  to  set  forth  the  custom  specially  in  the  declaration,  but 
it  was  sufficient  to  say  that  such  a  person  secundum  usum  et  con- 
suetudinem  mercatorum,  drew  the  bill."  And  the  plaintiff  had 
judgment. 

Thus  far  the  practice  of  merchants,  traders,  and  others,  of  treating 
promissory  notes,  whether  payable  to  order  or  bearer,  on  the  same 
footing  as  bills  of  exchange  had  received  the  sanction  of  the  Courts, 
but  Holt  having  become  Chief  Justice,  a  somewhat  unseemly  con- 
flict arose  between  him  and  the  merchants  as  to  the  negotiability 
of  promissory  notes,  whether  payable  to  order  or  to  bearer,  the 
Chief  Justice  taking  what  must  now  be  admitted  to  have  been  a 
narrow-minded  view  of  the  matter,  setting  his  face  strongly  against 
the  negotiability  of  these  instruments,  contrary,  as  we  are  told  by 
authority,  to  the  opinion  of  Westminster  Hall,  and  in  a  series  of 

1  2  Lutw.  1582. 

2  Carth.  269. 


192  HISTORY  OF  THE  COMIVION  LAW 

successive  cases,  persisting  in  holding  them  not  to  be  negotiable  by 
indorsement  or  deliver^^  The  inconvenience  to  trade  arising  there- 
from led  to  the  passing  of  the  statute  of  3  &  4  Anne,  c.  9,  whereby 
promissory  notes  were  made  capable  of  being  assigned  by  indorse- 
ment, or  made  payable  to  bearer,  and  such  assignment  was  thus 
rendered  valid  beyond  dispute  or  difficulty. 

It  is  obvious  from  the  preamble  of  the  statute,  which  merely 
recites  that  "it  had  been  held  that  such  notes  were  not  within  the 
custom  of  merchants,"  that  these  decisions  were  not  acceptable 
to  the  profession  or  the  country.  Nor  can  there  be  much  doubt 
that  by  the  usage  prevalent  amongst  merchants,  these  notes  had 
been  treated  as  securities  negotiable  by  the  customary  method 
of  assignment  as  much  as  bills  of  exchange  properly  so  called.  The 
Statute  of  Anne  may  indeed,  practically  speaking,  be  looked  upon 
as  a  declaratory  statute,  confirming  the  decisions  prior  to  the  time 
of  Lord  Holt. 

We  now  arrive  at  an  epoch  when  a  new  form  of  security  for 
money,  namely,  goldsmiths'  or  bankers'  notes,  came  into  general 
use.  Holding  them  to  be  part  of  the  currency  of  the  country,  as 
cash.  Lord  Mansfield  and  the  Court  of  King's  Bench  had  no  diffi- 
culty in  holding,  in  Miller  v.  Race,^  that  the  property  in  such  a  note 
passes,  like  that  in  cash,  by  delivery,  and  that  a  party  taking  it 
bona  fide,  and  for  value,  is  consequently  entitled  to  hold  it  against 
a  former  owner  from  whom  it  has  been  stolen. 

In  like  manner  it  was  held,  in  Collins  v.  Martin,'^  that  where 
bills  indorsed  in  blank  had  been  deposited  with  a  banker,  to  be 
received  when  due,  and  the  latter  had  pledged  them  with  another 
banker  as  security  for  a  loan,  the  owner  could  not  bring  trov^er  to 
recover  them  from  the  holder. 

Both  these  decisions  of  course  proceeded  on  the  ground  that  the 
property  in  the  bank-note  payable  to  bearer  passed  by  delivery, 
that  in  the  bill  of  exchange  by  indorsement  in  blank,  provided 
the  acquisition  had  been  made  bona  fide. 

A  similar  question  arose  in  Wookey  v.  Pole,^  in  respect  of  an 
exchequer  bill,  notoriously  a  security  of  modern  growth.  These 
securities  being  made  in  fa\'or  of  blank  or  order,  contained  this 
clause,  "If  the  blank  is  not  filled  up,  the  bill  will  he  paid  to  bearer.' 

1  1  Burr.  452. 

2  1  B.  &  P.  648. 

3  4  B.  &  Aid.  1. 


THE  LAW  MERCHANT  193 

Such  an  exchequer  bill,  having  been  placed,  without  the  blank  being 
filled  up,  in  the  hands  of  the  plaintiff's  agent,  had  been  deposited 
by  him  with  the  defendants,  on  a  bona  fide  adv^ance  of  money. 
It  was  held  by  three  judges  of  the  Queen's  Bench,  Bayley,  J., 
dissentiente,  that  an  exchequer  bill  was  a  negotiable  security,  and 
judgment  was  therefore  given  for  the  defendants.  The  judg- 
ment of  Holroyd,  J.,  goes  fully  into  the  subject,  pointing  out  the 
distinction  between  money  and  instruments  which  are  the  repre- 
sentatives of  money,  and  other  forms  of  property.  "The  Courts," 
he  says,  "have  considered  these  instruments,  either  promises  or 
orders  for  the  payment  of  money,  or  instruments  entitling  the 
holder  to  a  sum  of  money,  as  being  appendages  to  money,  and  fol- 
lowing the  nature  of  their  principal."  After  referring  to  the 
authorities,  he  proceeds:  "These  authorities  shew,  that  not  only 
money  itself  may  pass,  and  the  right  to  it  may  arise,  by  currency 
alone,  but  further,  that  these  mercantile  instruments,  which  en- 
title the  bearer  of  them  to  money,  may  also  pass,  and  the  right  to 
them  may  arise,  in  like  manner,  by  currency  or  delivery.  These 
decisions  proceed  upon  the  nature  of  the  property  {i.e.,  money), 
to  which  such  instruments  give  the  right,  and  which  is  in  itself 
current,  and  the  effect  of  the  instruments,  which  either  give  to  their 
holders,  merely  as  such,  a  right  to  receive  the  money,  or  specify 
them  as  the  persons  entitled  to  receive  it." 

Another  very  remarkable  instance  of  the  efficacy  of  usage  is  to 
be  found  in  much  more  recent  times.  It  is  notorious  that,  with 
the  exception  of  the  Bank  of  England,  the  system  of  banking  has 
recently  undergone  an  entire  change.  Instead  of  the  banker  issu- 
ing his  own  notes  in  return  for  the  money  of  the  customer  deposited 
with  him,  he  gives  credit  in  account  to  the  depositor,  and  leaves 
it  to  the  latter  to  draw  upon  him,  to  bearer  or  order,  by  what  is 
now  called  a  cheque.  Upon  this  state  of  things  the  general  course 
of  dealing  between  bankers  and  their  customers  has  attached 
incidents  previously  unknown,  and  these  by  the  decisions  of  the 
Courts  have  become  fixed  law.  Thus,  while  an  ordinary  drawee, 
although  in  possession  of  funds  of  the  drawer,  is'  not  bound  to 
accept,  unless  by  his  own  agreement  or  consent,  the  banker,  if  he 
has  funds,  is  bound  to  pay  on  presentation  of  a  cheque  on  demand. 
Even  admission  of  funds  is  not  sufficient  to  bind  an  ordinary 
drawee,  while  it  is  sufficient  with  a  banker;  and  money  deposited 
with  a  banker  is  not  only  money  lent,  but  the  banker  is  bound  to 
repay  it  when  called  for  by  the  draft  of  the  customer  (see  Pott  v. 


194  HISTORY  OF  THE  COMMON  LAW 

Clegg)}  Besides  this,  a  custom  has  grown  up  among  bankers 
themselves  of  marking  cheques  as  good  for  the  puqaoses  of  clear- 
ance, by  which  they  become  bound  to  one  another. 

Though  not  immediately  to  the  present  purpose,  bills  of  lading 
may  also  be  referred  to  as  an  instance  of  how  general  mercantile 
usage  may  give  effect  to  a  writing  which  without  it  would  not  ha\'e 
had  that  effect  at  common  law.  It  is  from  mercantile  usage,  as 
provided  in  evidence,  and  ratified  by  judicial  decision  in  the  great 
case  oi  Lickbarrow  v.  Masonr  that  the  efficacy  of  bills  of  lading  to 
pass  the  property  in  goods  is  derived. 

It  thus  appears  that  all  these  instruments  which  are  said  to 
have  derived  their  negotiability  from  the  law  merchant  had  their 
origin,  and  that  at  no  very  remote  period,  in  mercantile  usage,  and 
were  adopted  into  the  law  by  our  Courts  as  being  in  conformity- 
with  the  usages  of  trade;  of  which,  if  it  were  needed,  a  further 
confirmation  might  be  found  in  the  fact  that,  according  to  the  old 
form  of  declaring  on  bills  of  exchange,  the  declaration  always  was 
founded  on  the  custom  of  merchants. 

Usage,  adopted  by  the  Courts,  having  been  thus  the  origin  of  the 
whole  of  the  so-called  law  merchant  as  to  negotiable  securities, 
what  is  there  to  prevent  our  acting  upon  the  principle  acted  upon 
by  our  predecessors,  and  followed  in  the  precedents  they  have  left 
to  us?  Why  is  it  to  be  said  that  a  new  usage  which  has  sprung  up 
under  altered  circumstances,  is  to  be  less  admissible  than  the  usages 
of  past  time?  Why  is  the  door  to  be  now  shut  to  the  admission 
and  adoption  of  usage  in  a  matter  altogether  of  cognate  character, 
as  though  the  law  had  been  finally  stereotyped  and  settled  by  some 
positive  and  peremptory  enactment?  It  is  true  that  this  scrip 
purports,  on  the  face  of  it,  to  be  a  security  not  for  money,  but  for 
the  delivery  of  a  bond;  nevertheless  we  think  that,  substantially 
and  in  effect,  it  is  a  security  for  money,  which,  till  the  bond  shall  be 
delivered,  stands  in  the  place  of  that  document,  which,  when  deli\- 
ered,  will  be  beyond  doubt  the  representative  of  the  sum  it  is  in- 
tended to  secure.  Suppose  the  possible  case  that  the  borrowing 
government,  after  receiving  one  or  two  instalments,  were  to  deter- 
mine to  proceed  no  further  "with  its  loan,  and  to  pay  back  to  the 
lenders  the  amount  they  had  already  advanced;  the  scrip  with  its 
receipts  would  be  the  security  to  the  holders  for  the  amount.    The 

1  16  M.  &  W.  321. 

2  2  T.  R.  63. 


THE  REFORM  MOVEMENT  195 

usage  of  the  money  market  has  solved  the  question  whether  scrip 
should  be  considered  security  for,  and  the  representative  of,  money, 
by  treating  it  as  such. 

The  universaUty  of  a  usage  voluntarily  adopted  between  buyers 
and  sellers  is  conclusive  proof  of  its  being  in  accordance  with  pub- 
lic convenience;  and  there  can  be  no  doubt  that  by  holding  this 
species  of  security  to  be  incapable  of  being  transferred  by  delivery, 
and  as  requiring  some  more  cumbrous  method  of  assignment,  we 
should  materially  hamper  the  transactions  of  the  money  market 
with  respect  to  it,  and  cause  great  public  inconv'enience.  No 
doubt  there  is  an  evil  arising  from  the  facility  of  transfer  by  delivery, 
namely,  that  it  occasionally  gives  rise  to  the  theft  or  misappropria- 
tion of  the  security,  to  the  loss  of  the  true  owner.  But  this  is  an 
evil  common  to  the  whole  body  of  negotiable  securities.  It  is  one 
which  may  be  in  a  great  degree  prevented  by  prudence  and  care. 
It  is  one  which  is  counterbalanced  by  the  general  convenience  aris- 
ing from  facility  of  transfer,  or  the  usage  would  never  have  become 
general  to  make  scrip  available  to  bearer,  and  to  treat  it  as  trans- 
ferable by  delivery.  It  is  obv^ious  that  no  injustice  is  done  to  one 
who  has  been  fraudulently  dispossessed  of  scrip  through  his  own 
misplaced  confidence,  in  holding  that  the  property  in  it  has  passed 
to  a  bona  fide  holder  for  value,  seeing  that  he  himself  must  have 
known  that  it  purported  on  the  face  of  it  to  be  available  to  bearer, 
and  must  be  presumed  to  have  been  aware  of  the  usage  prevalent 
with  respect  to  it  in  the  market  in  which  he  purchased  it. 

Lastly,  it  is  to  be  observed  that  the  tendency  of  the  Courts, 
except  only  in  the  time  of  Lord  Holt,  has  been  to  give  effect  to 
mercantile  usage  in  respect  to  securities  for  money,  and  that 
where  legal  difficulties  have  arisen,  the  legislature  has  been  prompt 
to  give  the  necessary  remedy,  as  in  the  case  of  promissory  notes  and 
of  the  East  India  bonds. 


5.     THE  REFORM  MOVEMENT 

The  Reform  Movement,  which  completed  by  means  of  legislation  the  modern- 
izing of  the  common  law,  begun  by  the  court  of  chancery  and  carried  on  by  the 
law  merchant,  may  be  said  roughly  to  cover  the  period  from  1776  to  1876.  We 
may  begin  with  1776  for  two  reasons:  (1)  Because  in  that  year  Jeremy  Bentham 
published  his  first  work,  the  Fragment  on  Government;  (2)  because  in  the  same  year 
the  American  Declaration  of  Independence  set  free  a  new  group  of  common-la iv 
legislatures  to  take  a  hand  in  the  renovation  of  our  law.     The  period  may  be  said 


196  HISTORY  OF  THE  COMMON  LAW 

to  close  with  the  taking  eflcct  of  the  English  Judicature  Act  of  1873. ^  Although 
legislation  is  still  active  in  all  common-law  jurisdictions,  it  is  no  longer  directed 
to  sweeping  and  far-reaching  changes.  The  tendency  now  is  to  codify  and  restate 
rather  than  to  alter. 

Blackstone,  Commentaries,  HI,  2G7. 

But  this  intricacy  of  our  legal  process  will  be  found,  when  at- 
tentively considered,  to  be  one  of  those  troublesome,  but  not  dan- 
gerous evils,  which  have  their  root  in  the  frame  of  our  constitution, 
and  which  therefore  can  never  be  cured,  without  hazarding  every- 
thing that  is  dear  to  us.  In  absolute  governments  when  new 
arrangement  of  property  and  a  gradual  change  of  manners  have 
destroyed  the  original  ideas  on  which  the  laws  were  devised  and 
established,  the  prince  by  his  edict  miiy  promulge  a  new  code,  more 
suited  to  the  present  emergencies.  But  when  laws  are  to  be  framed 
by  popular  assemblies,  even  of  the  representative  kind,  it  is  too 
herculean  a  task  to  begin  work  of  legislation  afresh,  and  extract  a 
new  system  from  the  discordant  opinions  of  more  than  five  hun- 
dred counsellors.  A  single  legislator  or  an  enterprising  sovereign, 
a  Solon  or  Lycurgus,  a  Justinian  or  a  Frederick,  may  at  any  time 
form  a  concise  and  perhaps  an  uniform  plan  of  justice:  and  evil 
betide  that  presumptuous  subject  who  questions  its  wisdom  or  util- 
ity. But  who,  that  is  acquainted  with  the  difficulty  of  new  model- 
ing any  branch  of  our  statute  laws  (though  relating  but  to  roads 
or  to  parish  settlements)  will  conceive  it  ever  feasible  to  alter  any 
fundamental  point  of  the  common  law  with  all  its  appendages  and 
consequents  and  set  up  another  rule  in  its  stead?  When,  therefore, 
by  the  gradual  influence  of  foreign  trade  and  domestic  tranquillity, 
the  spirit  of  our  military  tenures  began  to  decay  and  at  length  the 
whole  structure  was  removed,  the  judges  quickly  perceived  that 
the  forms  and  delays  of  the  old  feudal  actions  (guarded  with  their 
several  outworks  of  essoins,  vouchers,  aid  prayers,  and  a  hundred 
other  formidable  entrenchments)  were  ill  suited  to  that  more  sim- 
ple and  commercial  mode  of  property  which  succeeded  the  former 
and  required  a  more  speedy  decision  of  right  to  facilitate  exchange 
and  alienation.  Yet  they  wisely  avoided  soliciting  any  great  legis- 
lative revolution  in  the  old  established  forms  which  might  have 
been  productive  of  consequences  more  numerous  and  extensive  than 
the  most  penetrating  genius  could  foresee;   but  left  them  as  they 

'  Dicey  holds  that  a  new  period  began  in  England  about  1SG5,  when  collectivism 
came  to  be  the  leading  principle  in  English  legislation. 


THE  REFORM  MOVEMENT  197 

were  to  languish  in  obscurity  and  oblivion,  and  endeavored  by  a 
series  of  minute  contrivances  to  accommodate  such  personal  actions 
as  were  then  in  use,  to  all  the  most  useful  purposes  of  remedial 
justice:  and  where,  through  the  dread  of  innovation,  they  hesitated 
at  going  so  far  as  perhaps  their  good  sense  would  have  prompted 
them,  they  left  an  opening  for  the  more  liberal  and  enterprising 
judges  who  have  sate  in  our  courts  of  equity  to  shew  them  their 
error  by  supplying  the  omissions  of  the  courts  of  law.  And  since 
the  new  expedients  have  been  refined  by  the  practice  of  more 
than  a  century,  and  are  sufficiently  known  and  understood,  they  in 
general  answer  the  purpose  of  doing  speedy  and  substantial  justice, 
much  better  than  could  now  be  efifected  by  any  great  fundamental 
alterations.  The  only  difhculty  that  attends  them  arises  from  their 
fictions  and  circuities;  but  when  once  we  have  discovered  the 
proper  clew,  that  labyrinth  is  easily  pervaded.  Our  system  of 
remedial  law  resembles  an  old  Gothic  castle,  erected  in  the  days  of 
chivalry  but  fitted  up  for  a  modern  inhabitant.  The  moated  ram- 
parts, the  embattled  towers,  and  the  trophied  halls,  are  magnificent 
and  venerable,  but  useless,  and  therefore  neglected.  The  inferior 
apartments,  now  accomodated  to  daily  use,  are  cheerful  and  com- 
modious, though  their  approaches  may  be  winding  and  difficult. 

Blackstone,   Commentaries,   IV,   442. 

We  have  seen  in  the  course  of  our  inquiries  in  this  and  the  for- 
mer volumes  that  the  fundamental  maxims  and  rules  of  the  law 
which  regard  the  rights  of  persons  and  the  rights  of  things,  the 
private  injuries  that  may  be  offered  to  both,  and  the  crimes  which 
affect  the  public,  have  been  and  are  every  day  improving,  and  are 
now  fraught  with  the  accumulated  wisdom  of  ages:  that  the  forms 
of  administering  justice  came  to  perfection  under  Edward  I;  and 
have  not  been  much  varied  nor  always  for  the  better  since;  that 
our  religious  liberties  were  fully  established  at  the  Reformation: 
but  that  the  recovery  of  our  civil  and  political  liberties  was  a  work 
of  longer  time;  they  not  being  thoroughly  and  completely  regained 
till  after  the  restoration  of  King  Charles,  nor  fully  and  explicitly 
acknowledged  and  defined  till  the  aera  of  the  happy  revolution. 
Of  a  constitution  so  wisely  contrived,  so  strongly  raised,  and  so 
highly  finished,  it  is  hard  to  speak  with  that  praise  which  is  justly 
and  severely  its  due:  —  the  thorough  and  attentive  contemplation  of 
it  will  furnish  its  best  panegyric.  It  hath  been  the  endeavour  of 
these  Commentaries,  however  the  execution  may  have  succeeded, 


198  HISTORY  OF  THE  COMMON  LAW 

to  examine  its  solid  foundations,  to  mark  out  its  extensive  plan  ;  to 
explaiij  the  use  and  distribution  of  its  parts,  and  from  the 
harmonious  concurrence  of  those  parts,  to  demonstrate  the  elegant 
proportion  of  the  whole. 

Pollock,  The  Law  of  England,  I-L  Victorl\e,  3  Law  Quar. 
Rev.  643. 

Blackstone  caught  and  expressed  the  spirit  of  his  time  with  con- 
summate skill,  but  he  caught  it  only  just  in  time.  Hardly  was  his 
ink  dry  when  Bentham  sounded  a  blast  that  rudely  disturbed  the 
supposed  finality  of  the  common  law,  and  (what  was  even  a  greater 
matter)  the  independence  of  the  United  States,  insured  the  free 
and  ample  development  of  English  legal  ideas  in  directions  and  for 
purposes  as  yet  unknown.  With  the  nineteenth  century  we  are 
started  in  a  wide  and  ever  expanding  field  of  new  adventures. 

The  commencement  of  our  sovereign  lady's  regnal  year  coin- 
cides approximately  with  the  opening  of  a  new  period  of  develop- 
ment in  the  law  of  England.  That  period  is  not  yet  closed,  but 
enough  has  been  done  to  make  it  certain  that  for  the  future  his- 
torian of  our  law,  on  what  shore  of  what  ocean  soever  he  is  destined 
to  arise.  Her  Majesty's  reign  will  not  be  less  eventful  or  interesting 
than  that  of  Edward  L  or  Elizabeth. 

Lord   Brougham,  Speeches,   H,  288   (1838). 

The  age  of  law  reform  and  the  age  of  Jeremy  Bentham  are  one 
and  the  same.  No  one  before  him  ever  seriously  thought  of  ex- 
posing the  defects  in  our  English  system  of  jurisprudence.  He  it 
was  who  first  made  the  mighty  step  of  trying  the  whole  provisions 
of  our  jurisprudence  by  the  test  of  expediency,  fearlessly  examin- 
ing how  far  each  part  was  connected  with  the  rest,  and  with  a  yet 
more  undaunted  courage  inquiring  how  far  even  its  most  consistent 
and  symmetrical  arrangements  were  framed  according  to  the  prin- 
ciples which  should  pervade  a  code  of  laws,  their  adaptation  to  the 
circumstances  of  society,  to  the  wants  of  men,  and  to  the  promotion 
of  human  happiness. 

Dicey,    Lectures    on    the    Relation    Between    Law    and 

Public  Opinion   in  England,   133-146. 

My  object  in  this  lecture  is,  first,  to  sketch  in  the  merest  outline 

the  ideas  of  Benthamism  or  individualism,  in  so  far  as  when  applied 

by  practical  statesmen  they  have  affected  the  growth  of  English 


THE  REFORM  MOVEMENT  199 

law;  next,  to  explain  and  describe  the  general  acceptance  of  Ben- 
thamism as  the  dominant  legislative  opinion  of  a  particular  era ; 
and,  lastly,  to  illustrate  by  examples  the  general  trend  of  Ben- 
thamite or  individualistic  legislation. 

(A)     Benthamite  Ideas  as  to  the  Reform  of  the  Law. 

Bentham,  considered  exclusively  as  a  reformer  of  the  law  of 
England,  achieved  two  ends. 

He  determined,  in  the  first  place,  the  principles  on  which  reform 
should  be  based. 

He  determined,  in  the  second  place,  the  method,  i.  e.,  the  mode  of 
legislation,  by  which  in  England,  reform  should  be  carried  out. 

As  to  the  Principles  of  Law  Reform.  —  The  ideas  which  underlie 
the  Benthamite  or  individualistic  scheme  of  reform  may  con- 
veniently be  summarised  under  three  leading  principles  and  two 
corollaries. 

I.     Legislation  is  a  Science. 

English  law,  as  it  existed  at  the  end  of  the  eighteenth  century, 
had  in  truth  developed  almost  haphazard,  as  the  result  of  customs 
or  modes  of  thought  which  had  prevailed  at  different  periods. 
The  laws  actually  in  existence  had  certainly  not  been  enacted  with 
a  view  to  any  one  guiding  principle.  They  had,  indeed,  for  the 
most  part  never  been  "enacted"  (in  the  strict  sense  of  that  word) 
at  all.  They  were,  as  they  still  indeed  to  a  great  extent  are,  the 
result  of  judicial  legislation  built  up  in  the  course  of  deciding  par- 
ticular cases.  English  law  had  in  fact  grown,  rather  than  been 
made,  and  the  language  used  by  Paley  with  regard  to  the  con- 
stitution might,  with  the  change  of  one  word,  be  applied  to  the  whole 
law  of  England. 

"The  [law]  of  England,  like  that  of  most  countries  in  Europe, 
hath  grown  out  of  occasion  and  emergency;  from  the  fluctuating 
policy  of  different  ages;  from  the  contentions,  successes,  interests, 
and  opportunities  of  different  orders  and  parties  of  men  in  the 
community.  It  resembles  one  of  those  old  mansions,  which,  instead 
of  being  built  all  at  once,  after  a  regular  plan,  and  according  to 
the  rules  of  architecture  at  present  established,  has  been  reared 
in  different  ages  of  the  art,  has  been  altered  from  time  to  time,  and 
has  been  continually  receiving  additions  and  repairs  suited  to  the 
taste,  fortune,  or  conveniency  of  its  successive  proprietors.  In 
such  a  building  we  look  in  vain  for  the  elegance  and  proportion, 


200  HISTORY  OF  THE  COMMON  LAW 

for  the  just  order  and  correspondence  of  parts,  which  we  expect 
in  a  modern  edifice;  and  which  external  symmetry,  after  all,  con- 
tributes much  more  perhaps  to  the  amusement  of  the  beholder  than 
the  accommodation  of  the  inhabitant." 

But  Bentham  saw  clearly  several  facts  which  Paley  failed  to 
recognize.  The  revered  mansion  was  not  only  antiquated,  but  in 
many  respects  so  unsuited  to  the  requirements  of  the  times,  that 
it  was  to  its  numerous  inhabitants  the  cause  not  only  of  discom- 
fort but  even  of  misery.  In  order  to  amend  the  fabric  of  the  law 
we  must,  he  insisted,  lay  down  a  plan  grounded  on  fixed  prin- 
ciples; in  many  instances  not  amendment  but  reconstruction  was 
a  necessity;  and  even  gradual  improvements,  if  they  were  to  attain 
their  object,  must  be  made  in  accordance  with  fixed  rules  of  art. 
Legislation,  in  short,  he  proclaimed,  is  a  science  based  on  the  char- 
acteristics of  human  nature,  and  the  art  of  lawmaking,  if  it  is  to  be 
successful,  must  be  the  application  of  legislative  principles.  Of  these 
ideas  Bentham  was  not  the  discoverer  but  the  teacher;  he  may  be 
described  as  the  prophet  who  forced  the  faith  in  scientific  legisla- 
tion upon  the  attention  of  a  generation  of  Englishmen  by  whom 
its  truth  or  importance  was  denied  or  forgotten. 

II.     The  right  aim  of  legislation  is  the  carrying  out  of  the  principle 
of  utility,  or,  in  other  words,  the  proper  end  of  every  law  is  the 
promotion  of  the  greatest  happiness  of  the  greatest  number. 
This  principle,  obtained  as  we  have  seen  from  Priestley,  is  the 

formula  with  which  popular  memory  has  most  closely  connected 

the  name  of  Bentham. 


III.     Every  person  is  in  the  main  and  as  a  general  ride  the  best  judge 
of  his   oivn   happiness.      Hence,  legislation  should  aim   at   the 
removal  of  all  those  restrictions  on  the  free  action  of  an  individual 
which  are  not  necessary  for  securing  the  like  freedom  on  the  part 
of  his  neighbours. 
This  dogma  of  laissez  faire  is  not,  from  a  logical  point  of  view, 
an  essential  article  of  the  utilitarian  creed.     A  benevolent  despot 
of  high  intelligence,  while  admitting  that  the  proper  end  of  scien- 
tific legislation  is  to  promote  the  greatest  hajipiness  of  the  greatest 
number,  might  contend  that  the  mass  of  his  people,  owing  to  igno- 
rance and  prejudice,  did  not  understand  their  own  interests,  and 
might  go  on  to  maintain  and   act  on  the  principle,  that  as  his 


THE  REFORM  MOVEMENT  201 

subjects  were  neither  the  best  judges  of  the  conditions  which  consti- 
tuted happiness,  nor  understood  the  means  by  which  these  condi- 
tions were  to  be  attained,  it  was  his  duty  to  enforce  upon  them 
laws  which,  though  they  might  diminish  individual  liberty,  were 
likely  nevertheless  to  ensure  the  well-being  of  his  people.  This 
position  is  not  in  itself  illogical;  it  was  held  by  the  benevolent 
despots  of  the  eighteenth  century,  and  would  have  commended  itself 
to  so  acute  a  thinker  as  Voltaire,  for  we  may  assume  with  confi- 
dence that  he  would  not  have  condemned  a  ruler  who  by  severe 
legislation  overthrew  the  reign  of  superstition  or  intolerance.  But, 
though  laissez  faire  is  not  an  essential  part  of  utilitarianism,  it  was 
practically  the  most  vital  part  of  Bentham's  legislative  doctrine, 
and  in  England  gave  to  the  movement  for  the  reform  of  the  law 
both  its  power  and  its  character.  At  the  time  when  Bentham  became 
the  preacher  of  legislative  utilitarianism  the  English  people  were 
proud  of  their  freedom,  and  it  was  the  fashion  to  assert,  that  under 
the  English  constitution  no  restraint  was  placed  on  individual 
liberty  which  was  not  requisite  for  the  maintenance  of  public  order. 
Bentham  saw  through  this  cant,  and  perceived  the  undeniable 
truth,  that,  under  a  system  of  ancient  customs  modified  by  hap- 
hazard legislation,  unnumbered  restraints  were  placed  on  the 
action  of  individuals,  and  restraints  which  were  in  no  sense  neces- 
sary for  the  safety  and  good  order  of  the  community  at  large, 
and  he  inferred  at  once  that  these  restraints  were  evils. 

Dillon,  Laws  and  Jurisprudence  of  England  and  America, 
339-342. 
Passing  from  these  general  considerations,  I  proceed  to  notice 
specifically  two  other  subjects.  One  is  Bentham's  reforms  in  the 
Law  of  Evidence.  Here  the  direct  fruits  of  Bentham's  labors  are 
plainly  to  be  seen.  In  some  respects  his  "Judicial  Evidence," 
before  mentioned,  is  the  most  important  of  all  his  censorial  writings 
on  English  law.  In  this  work  he  exposed  the  absurdity  and  per- 
niciousness  of  many  of  the  established  technical  rules  of  evidence. 
"In  certain  cases,"  he  says,  "jurisprudence  may  be  defined,  the 
art  of  being  methodically  ignorant  of  what  everybody  knows." 
Among  the  rules  combated  were  those  relating  to  the  competency 
of  witnesses  and  the  exclusion  of  evidence  on  various  grounds, 
including  that  of  pecuniary  interest.  He  insisted  that  .these  rules 
frequently  caused  the  miscarriage  of  justice,  and  that  in  the  inter- 
est of  justice  they  ought  to  be  swept  away.     His  reasoning  fairly 


202  HISTORY  OF  THE  COMMON  LAW 

embraces  the  doctrine  that  parties  ought  to  be  allowed,  and  even 
required,  to  testify.  This  work  appeared  in  Paris  in  1802,  and  in 
England  in  1825  and  1827;  but  it  produced  no  immediate  effect  on 
the  professional  mind.  It  was  generally  regarded  as  the  specula- 
tions of  a  visionary.  As  I  write  I  have  before  me  Sta.rkles Evidence, 
the  third  edition  of  which  appeared  in  1842,  and  the  wisdom  of  the 
exclusionary  rules  of  e\'idence  are  not  so  much  as  criticised  or 
questioned. 

But  Bentham  had  set  a  few  men  thinking.  He  had  scattered  the 
seeds  of  truth.  Though  they  fell  on  stony  ground  they  did  not  all 
perish.  But  verily,  reform  is  a  plant  of  slow  growth  in  the  sterile 
gardens  of  the  practising  and  practical  lawyer.  Bentham  lived 
till  1832,  and  these  exclusionary  rules  still  held  sway.  But  in  1843, 
by  Lord  Denman's  Act,  interest  in  actions  at  common  law  ceased, 
as  a  rule,  to  disqualify;  and  in  1846  and  1851,  by  Lord  Brougham's 
Acts,  parties  in  civil  actions  were  as  a  rule  made  competent  and  com- 
pellable to  testify.  I  believe  I  speak  the  universal  judgment  of  the 
profession  when  I  say  that  changes  more  beneficial  in  the  adminis- 
tration of  justice  have  rarely  taken  place  in  our  law,  and  that 
it  is  a  matter  of  profound  amazement,  as  we  look  back  upon 
it,  that  these  exclusionary  rules  ever  had  a  place  therein,  and 
especially  that  they  w^ere  able  to  retain  it  until  within  the  last 
fifty  years. 

Let  us  be  just.  The  credit  of  originating  this  great  improvement 
is  due  not  to  Denman  and  Brougham,  but  it  essentially  belongs 
to  Bentham  although  he  was  in  his  grave  before  it  was  actually 
effected.  Mr.  Justice  Stephen  forcibly  remarks  of  Bentham's 
assault  on  the  system  of  judicial  evidence  that  "it  was  like  the 
bursting  of  a  shell  in  the  powder  magazine  of  a  fortress,  the  frag- 
ments of  the  shell  being  lost  in  the  ruin  which  it  has  wrought." 
The  moral  is  obvious.  The  philosophic  student  of  our  laws  may 
often  have  a  keener  and  juster  insight  into  their  vices  and  imper- 
fections than  the  practising  lawyer,  whose  life  and  studies  are 
exclusively  confined  to  the  ascertainment  and  application  of  the 
law  as  it  is,  and  who  rarely  vexes  himself  with  the  question  of  what 
it  ought  to  be,  or  makes  any  serious  effort  to  reform  it.  But  let 
me  not  be  misunderstood.  While  the  philosophic  student  is  able 
to  point  out  defects  in  the  laws,  yet  the  history  of  the  law  shows 
that  only  practical  lawyers  are  capable  of  satisfactorily  executing 
the  work  of  reform.  Bentham's  failure  in  directly  realizing  greater 
practical  results  grew  out  of  his  mistaken  notion  that  the  work  of 


THE  REFORM  MOVEMENT  203 

actual  amendment  could  be  accomplished  without  experts,  —  that 
is,  without  the  aid  of  the  bar  and  without  its  active  support. 

Extracts   from   A   Century  of   Law   Reform    (1901).     [These 
extracts  are  from  the  Introductory  Lecture  of  Dr.  Odgers.] 

We  find  since  1800  a  marked  improvement  both  in  the  substance 
of  our  criminal  law  and  in  the  whole  tone  of  its  administration.  In 
the  year  1800  there  were  more  than  200  crimes  punishable  with 
death !  Of  these  more  than  two-thirds  had  been  made  capital  dur- 
ing the  eighteenth  century.  Sir  Samuel  Romilly  asserted  that  there 
was  no  other  country  in  the  world  "where  so  many  and  so  large  a 
variety  of  actions  were  punishable  by  loss  of  life."  Nearly  all 
felonies  were  capital.  If  a  man  falsely  pretended  to  be  a  Green- 
wich pensioner,  he  was  hanged.  If  he  injured  a  county  bridge, 
or  cut  down  a  young  tree,  he  was  hanged.  If  he  forged  a  bank 
note,  he  was  hanged.  If  he  stole  property  valued  at  five  shillings; 
if  he  stole  anything  above  the  value  of  one  shilling  from  the  person ; 
if  he  stole  anything  at  all,  whatever  its  value,  from  a  bleaching 
ground;  he  was  hanged.  If  a  convict  returned  prematurely  from 
transportation;  or  if  a  soldier  or  sailor  wandered  about  the  country 
begging  without  a  pass;  he  was  hanged.  And  these  barbarous 
laws  were  relentlessly  carried  into  execution.  A  boy  only  ten  years 
old  was  sentenced  to  death  in  1816;  whether  he  was  actually  exe- 
cuted I  can  not  say. 

Thanks  to  Sir  Samuel  Romilly,  and  later  to  Sir  James  Mackin- 
tosh, the  number  of  capital  offences  was  gradually  reduced;  and 
now  we  have  but  four  crimes  punishable  with  death,  two  of  which 
very  rarely  occur.  In  1800,  too,  our  prisons  were  sinks  of  iniquity 
and  disease;  the  gaolers  feared  to  enter  a  cell  lest  they  should  catch 
gaol  fever ;  and  a  sentence  of  imprisonment  was  often  a  sentence  to 
death.  Now  great  care  is  taken  of  the  health  and  morals  of  our 
convicts  in  prison.  And  a  criminal  trial  now  is  conducted  in  a 
very  different  fashion  from  a  trial  in  1800.  The  prisoner  now  is 
treated  with  the  utmost  fairness  and  consideration. 

In  Common  Law,  and  in  the  procedure  of  the  Courts  which  en- 
force it,  many  great  changes  have  taken  place  during  the  century. 
Of  course  a  contract  is  much  the  same  now  as  it  was  in  1800.  But 
in  1800  no  contracts,  except  negotiable  instruments,  were  assignable. 
Only  the  original  parties  to  a  contract  could  sue  on  it.  Now  the 
benefit  of  nearly  every  contract  is  assignable.  On  the  other  hand, 
wagering  contracts  in  1800  could  be  enforced  in  the  courts  of  law; 


204  HISTORY  OF  THE  COMMON  LAW 

and  all  sorts  of  extraordinary  actions  were  the  results.  If  a  bet  was 
made,  not  upon  any  illegal  sport,  or  any  game  or  race,  the  result 
was  a  legal  debt,  for  which  an  action  would  lie;  and  such  actions 
were  solemnly  tried  in  open  court.  This  was  put  to  an  end  by  an 
Act  passed  in  1845. 

With  a  few  exceptions,  the  principles  of  law  applicable  to  torts 
remain  much  as  they  were  in  1800.  The  most  marked  change  was 
made  by  Lord  Campbell's  Fatal  Accidents  Act,  1846.  As  the  law 
stood  in  1800,  if  a  passenger  was  upset  in  a  stage-coach  and  his 
leg  broken,  he  could  sue  the  proprietor  and  recover  damages  for 
the  pain  which  he  had  suffered,  the  injury  done  him,  and  the  medical 
and  other  expenses  which  had  been  incurred.  But  if  he  was  killed 
outright  by  the  accident,  his  family  and  his  executors  had  no 
redress  whatever.  They  could  not  even  recover  his  funeral  ex- 
penses! His  right  of  action  was  said  to  be  personal  and  to  have  died 
with  him.  So  it  was  a  bad  thing  pecuniarily  for  the  proprietor  of  a 
stage-coach,  if  his  passengers  reco\'ered  from  their  injuries;  it 
was  to  his  advantage,  if  there  was  to  be  an  accident  at  all,  that  they 
should  all  break  their  necks.  This  was  put  a  stop  to  by  Lord  Camp- 
bell's Act  in  1846. 

The  principles  of  equity  have  not  materially  changed  since  1800. 
What  was  a  breach  of  trust  then  is  a  breach  of  trust  now,  though 
great  and  much-needed  relief  has  been  afforded  to  trustees  by  ena- 
bling them  to  plead  the  Statute  of  Limitations  in  many  cases  where 
their  default  was  not  fraudulent.  The  rules  laid  down  by  Lord 
Eldon  in  Ellison  v.  Ellison  are  still  applied  in  cases  of  Voluntary 
Trusts.  The  law  as  to  constructive  notice  declared  by  Lord  Hard- 
wicke  in  Le  Neve  v.  Le  Neve  and  other  cases  endured  till  1882,  when  it 
was  modified  by  the  Conveyancing  Act.  The  old  doctrines  of  the 
Courts  of  Equity  as  to  conversion  and  election,  ademption  of  leg- 
acies, priority  of  mortgages,  and  marshalling  assets,  remain  sub- 
stantially in  force  to  this  day;  though  the  rules  relating  to  the 
administration  of  the  estates  of  deceased  persons  have  been  altered 
by  many  statutes. 

In  tiie  law  of  real  property,  on  the  other  hand,  changes  of  enor- 
mous importance  have  been  made  during  the  century. 


THE  REFORM  MOVEMENT  205 

In  conveyancing,  too,  the  changes  have  been  equally  startling. 
In  1800  no  man  could  convey  to  another  freehold  land  in  posses- 
sion by  a  simple  deed.  Such  land  did  not  lie  in  grant.  Either  the 
purchaser  and  the  vendor  had  to  visit  the  spot  and  go  through  the 
elaborate  ceremony  of  a  feoffment  with  livery  of  seisin;  or,  what 
was  more  usual,  the  parties  had  recourse  to  the  device  of  creating 
an  unnecessary  tenancy  by  means  of  a  Lease  and  then  supple- 
menting it  by  a  subsequent  Release  —  two  deeds  and  double  the 
cost.  An  end  was  put  to  this  in  1845.  Fines  and  recoveries  were 
abolished  in  1833.  Since  then  title-deeds  themselves  have  been  so 
shortened  and  simplified  by  the  Conveyancing  Acts  that  they  no 
longer  deserve  Lord  Westbury's  severe  censure.  You  remember 
that  he  spoke  of  title  deeds,  as  being  "difficult  to  read,  impossible 
to  understand,  and  disgusting  to  touch." 

In  1800  there  was  no  such  thing  as  an  ordinary  limited  liability 
company.  There  were  a  few  trading  companies  each  incorporated 
by  its  own  private  Act  of  Parliament.  But  apart  from  these, 
every  trading  concern  in  which  more  than  one  man  was  interested 
was  just  a  common  law  partnership,  and  each  partner  was  personally 
liable  for  the  whole  of  the  debts  of  the  firm.  Now  any  one  can 
take  as  many  shares  as  he  likes  in  a  limited  liability  company,  and 
as  soon  as  he  has  paid  for  his  shares  in  full  he  is  free  from  all 
further  liability  to  the  creditors  of  the  company.  Whether  the 
change  was  a  good  one  or  a  bad  one,  it  is  hard  to  say.  It  has  no 
doubt  greatly  encouraged  and  facilitated  commercial  enterprise;  it 
has  carried  British  capital  into  every  corner  of  the  inhabitated 
globe. 

There  was  no  Bankruptcy  Court  in  1800.  Bankruptcy  was 
originally  regarded  as  a  crime;  in  the  earliest  Bankruptcy  Acts 
the  bankrupt  is  always  alluded  to  as  "the  offender."  But  before 
1800  bankruptcy  had  come  to  be  regarded  as  the  proper  remedy 
for  traders  in  embarrassed  circumstances.  But  this  relief  was 
limited  to  "traders";  no  one  else  could  avail  himself  of  the  Bank- 
ruptcy Laws.  A  private  gentleman,  an  attorney,  a  solicitor,  a  stock- 
broker, a  farmer,  or  a  grazier,  was  not  a  trader,  nor  was  any  labourer 
or  workman.  If  any  of  these  persons  could  not  pay  his  just  debts, 
he  had  to  rot  in  the  Marshalsea  or  the  Fleet  till  his  friends  or  rela- 
tives took  pity  on  him  and  found  the  money.  This  was  then  the 
deliberate  policy  of  our  law,  that  if  a  man  was  hopelessly  in  debt 
he  must  be  locked  up  and  deprived  of  all  chance  of  earning  any 


206  HISTORY  OF  THE  COMMON  LAW 

money  with  which  to  pay  his  creditors!  The  creditor  seized  his 
body  in  satisfaction  of  the  debt.  This  is  the  state  of  things  which 
Dickens  so  powerfully  describes  in  Pickwick  and  in  Little  Dorrit. 
Nor  does  he  exaggerate  in  the  least.  Yoti  can  learn  a  great  deal  of 
law  from  Dickens'  novels.  And  remember  that  he  was  a  student 
of  the  Middle  Temple,  though  he  was  ne\er  called  to  the  bar. 

The  first  step  for  the  relief  of  these  insolvent  delators  was  taken 
in  1808,  when  an  Act  was  passed  exempting  from  imprisonment  in 
certain  cases  judgment  debtors  who  had  been  taken  in  execution  for 
any  debt  or  damages  not  exceeding  ^20,  exclusi\e  of  costs.  Other 
statutes  followed  in  1844,  1845,  and  1846. 

And  there  was  no  Divorce  Court  in  1800.  At  the  commence- 
ment of  the  century,  the  marriage  bond  could  be  severed  by  nothing 
less  than  an  Act  of  Parliament.  That  is  still,  I  belie\e,  the  law 
of  Ireland,  which  is  still  without  a  Divorce  Court.  And  before 
asking  for  an  Act  of  Parliament,  the  injured  husband  was  required, 
first,  to  sue  the  adulterer  at  law  and  obtain  a  \-erdict  against  him 
for  damages,  and  then  to  take  proceedings  in  an  Ecclesiastical 
Court  for  a  decree  of  divorce  a  mensa  et  tJwro.  When  he  had 
succeeded  in  these  two  Courts,  he  might  commence  his  application 
to  Parliament.  In  other  words,  only  a  very  wealthy  man  could 
obtain  a  divorce  in  England  in  1800. 

Next  to  lunatics,  our  polite  text-book  writers  always  place  mar- 
ried women!  And  great  indeed  are  the  changes  that  have  been 
made  in  this  branch  of  our  law.  In  1800  a  married  woman  had 
scarcely  any  rights;  she  could  make  no  contracts,  acquire  no  per- 
sonal property,  and  all  her  earnings  belonged  to  her  husband.  Such 
at  least  was  the  rule  at  law.  In  equity  it  was  possible  for  a  woman 
to  have  a  marriage  settlement  executed  before  marriage,  and  thus 
preserve  her  property  to  her  sole  and  separate  use.  The  first 
few  years  of  the  new  century  witnessed  two  decisions  which  estab- 
lished for  the  first  time  the  right  of  a  married  woman  who  had 
married  without  a  settlement  to  have  some  portion  of  her  own 
personal  property  settled  upon  herself  and  her  children.  Now  a 
wife  is  in  a  position  of  almost  complete  equality  with  her  hus- 
band. An  entire  change  has  been  introduced  by  the  Married 
Women's  Property  Acts  of  1870,  1874,  1882,  and  1893.  A  mai- 
ried    woman   now   can   make   a   contract  with    reference    to   her 


THE  REFORM  MOVEMENT  207 

separate  property  just  as  though  she  were  unmarried;    she  can  sell 
it  or  dispose  of  it  by  will;   her  earnings  are  her  own. 

Note.  —  In  addition  to  Jeremy  Bentham  (1748-1835),  the  following  names  de- 
serve to  be  remembered  in  connection  with  the  Reform  Movement: 

Sir  Samuel  Romilly  (1757-1818),  was  Solicitor  General  in  1806.  He  sat  in 
Parliament  from  that  date  till  his  death  and  devoted  himself  to  reform  of  Criminal 
Law. 

Henry  Brougham,  afterwards  Lord  Brougham  and  Vaux  (1778-1868),  af«-er  a 
brilliant  career  at  the  bar,  became  Chancellor  in  1830,  holding  that  office  four 
years.  Sitting  in  the  House  of  Commons  from  1815  to  1830,  he  was  one  of  the 
most  effective  and  energetic  of  the  champions  of  Law  Reform. 

Henry  Bickersteth,  afterwards  Lord  Langdale  (1783-1851),  was  called  to  the 
bar  in  1811,  and  became  Master  of  the  Rolls  in  1835.  Bentham  said  of  him,  "Of 
all  my  friends  Bickersteth  was  the  most  cordial  to  Law  Reform  to  its  utmost 
extent." 

David  Dudley  Field  (1805-1894),  the  foremost  advocate  of  Law  Reform  in 
America,  was  admitted  to  the  bar  in  New  York  in  1828  and  began  to  write  upon 
Reform  of  Procedure  in  1839.  In  1847  the  legislature  of  New  York  appointed 
him  upon  the  commission  which  prepared  the  Code  of  Civil  Procedure  in  which 
he  took  a  leading  part.  Codes  based  upon  it  are  now  in  force  in  twenty-seven 
states.  In  1857  he  was  placed  at  the  head  of  a  new  commission,  which  prepared 
three  codes,  a  political  code  (public  law),  a  civil  code  (private  law),  and  a  penal 
code.  Ten  states  have  adopted  the  last,  and  California  has  adopted  the  three. 
These  codes  were  also  adopted  by  and  are  in  force  in  Idaho,  Montana,  North 
Dakota  and  South  Dakota. 

Dicey,    Lectures    on    the    Relation    between    Law   and 

Public  Opinion  in  England,  62-65. 

The  nineteenth  century  falls  into  three  periods,  during  each  of 

which  a  different  current  or  stream  of  opinion  was  predominant, 

and  in  the  main  governed  the  development  of  the  law  of  England. 

L  The  Period  of  Old  Toryism  or  Legislative  Quiescence  (1800-1830). 
This  was  the  era  of  Blackstonian  optimism  reinforced,  as  the 
century  went  on,  by  Eldonian  toryism  or  reaction ;  it  may  be  termed 
the  period  of  legislative  quiescence,  or  (in  the  language  of  censors) 
stagnation.  Political  or  legislative  changes  were  first  checked  by 
that  pride  in  the  English  constitution,  and  intense  satisfaction  with 
things  as  they  were,  which  was  inherited  from  a  preceding  genera- 
tion, and  is  best  represented  by  the  studied  optimism  of  Black- 
stone;  they  were  ne.xt  arrested  by  that  reaction  against  Jacobinism 
and  revolutionary  violence  which  is  represented  by  the  legislative 
timidity  of  Lord  Eldon;  he  devoted  his  great  intellectual  powers 
(which    hardly   receive   justice   from    modern   critics)   at  once  to 


208  HISTORY  OF  THE  COMMON  LAW 

the  cautious  elaboration  of  the  doctrines  of  equity,  and  to  the 
obstruction  of  every  other  change  or  improvement  in  the  law.  The 
reactionary  character  of  this  period  increased  rather  than  dimin- 
ished as  the  century  advanced.  The  toryism  of  1815  or  1817 
was  less  intelligent  and  more  violent  than  the  toryism  of  1800. 
Laws  passed  during  this  period,  and  especially  during  the  latter 
part  thereof,  assumed  a  deliberately  reactionary  form,  and  were 
aimed  at  the  suppression  of  sedition,  of  Jacobinism,  of  agitation, 
or  of  reform.  But  though  it  is  easy  to  find  examples  of  reaction- 
ary legislation,  the  true  characteristic  of  the  time  w^as  the  preva- 
lence of  quiescence  or  stagnation.  Optimism  had  at  least  as  much 
to  do  with  the  condition  of  public  sentiment  as  had  the  dread  of 
revolutionary  propagandism. 

n.     The  Period  of  Benthamism  or  Individualism  (1825-1870). 

This  was  the  era  of  utilitarian  reform.  Legislation  was  gov- 
erned by  the  body  of  opinion,  popularly,  and  on  the  whole  rightly, 
connected  with  the  name  of  Bentham.  The  movement  of  which 
he,  if  not  the  creator,  was  certainly  the  prophet,  was  above  all  things 
a  movement  for  the  reform  of  the  law.  Hence  it  has  effected, 
though  in  very  different  degrees,  every  part  of  the  law  of  England. 
It  has  stimulated  the  constant  activity  of  Parliament,  it  has  swept 
away  restraints  on  individual  energy,  and  has  exhibited  a  deliber- 
ate hostility  to  every  historical  anomaly  or  sur\ival,  which  appeared 
to  involve  practical  inconvenience,  or  in  any  way  to  place  a  check  on 
individual  freedom. 

III.     Period  of  Collectivism  (1865-1900) ,' 

By  collectivism  is  here  meant  the  school  of  opinion  often  termed 
(and  generally  by  more  or  less  hostile  critics)  socialism,  which  favors 
the  intervention  of  the  State,  even  at  some  sacrifice  of  individual 
freedom,  for  the  purpose  of  conferring  benefit  upon  the  mass  of  the 
people.  This  current  of  opinion  cannot,  in  England  at  any  rate, 
be  connected  with  the  name  of  any  one  man,  or  even  with  the 
name  of  any  one  definite  school.  It  has  increased  in  force  and 
volume  during  the  last  half  of  the  nineteenth  century,  nor  does 
observation  justify  the  expectation  that  in  the  sphere  of  legisla- 
tion, or  elsewhere,  its  strength  is  spent  or  its  influence  on  the  wane. 

'  The  period  of  collectivist  legislation  begins  much  later  in  the  United  States- 
On  the  whole  the  beginning  may  be  fixed  at  about  1890. 


THE  REFORM  MOVEMENT  209 

The  practical  tendencies  of  this  movement  of  opinion  in  England 
are  best  exemplified  in  our  labor  laws,  and  by  a  large  amount  of 
legislation  which,  though  it  cannot  be  easily  brought  under  one 
head,  is,  speaking  broadly,  intended  to  regulate  the  conduct  of 
trade  and  business  in  the  interest  of  the  working  classes,  and,  as 
collectivists  believe,  for  the  benefit  of  the  nation. 

Dicey,  Lectures  on  the  Relation  Between  Law  and 
Public  Opinion  in  England,  258-259. 

(A)    Principles  of  Collectivism. 

The  fundamental  principle  which  is  accepted  by  every  man  who 
leans  towards  any  form  of  socialism  or  collectivism,  is  faith  in  the 
benefit  to  be  derived  by  the  mass  of  the  people  from  the  action  or 
intervention  of  the  State  even  in  matters  which  might  be,  and  often 
are,  left  fo  the  uncontrolled  management  of  the  persons  concerned. 

This  doctrine  involves  two  assumptions:  the  one  is  the  denial 
that  laissez  faire  is  in  most  cases,  or  even  in  many  cases,  a  principle 
of  sound  legislation ;  the  second  is  a  belief  in  the  benefit  of  govern- 
mental guidance  or  interference,  even  when  it  greatly  limits  the 
sphere  of  individual  choice  or  liberty.  These  assumptions  —  the  one 
negative,  the  other  positive  —  are  logically  distinguishable,  and, 
as  a  matter  of  reasoning,  belief  in  the  one  does  not  of  necessity 
involve  belief  in  the  other. 

This  fundamental  doctrine,  however,  is  of  too  abstract  a  nature 
to  tell  much  upon  the  course  of  legislation,  at  any  rate  where  the 
lawmakers  are  Englishmen.  The  importance  of  its  general,  even 
though  tacit,  acceptance  lies,  as  regards  the  development  of  English 
law,  in  the  support  which  it  has  given  to  certain  subordinate 
principles  or  tendencies  which  immediately  affect  legislation. 
These  may  conveniently  be  considered  under  four  heads:  —  the 
Extension  of  the  Idea  of  Protection ;  —  the  Restriction  on  Freedom 
of  Contract ;  —  the  Preference  for  Collective  as  contrasted  with 
Individual  Action,  especially  in  the  matter  of  Bargaining; — the 
Equalisation  of  Advantages  among  individuals  possessed  of  unequal 
means  for  their  attainment.  A  given  law,  it  should  be  remembered, 
may  easily  be  the  result  of  more  than  one  of  these  tendencies, 
which  indeed  are  so  closely  inter-connected  that  they  ought  never, 
even  in  thought,  to  be  separated  from  one  another  by  any  rigid 
line  of  demarcation. 


210  SOURCES  AND  FORMS  OF  LAW 

CHAPTER  III 
SOURCES  AND  FORMS  OF  LAW 

Salmond,   Jurisprudence,   sec.   3L 

The  expression  source  of  law  (fans  juris),  has  several  meanings 
which  it  is  necessary  to  distinguish  clearly.  We  must  distinguish 
in  the  first  place  between  the  formal  and  the  material  sources  of 
the  law.  A  formal  source  is  that  from  which  a  rule  of  law  derives 
its  force  and  validity.  It  is  that  from  which  the  authority  of 
the  law  proceeds.  The  material  sources,  on  the  other  hand,  are 
those  from  which  is  derived  the  matter,  not  the  validity  of  the 
law.  The  material  source  supplies  the  substance  of  the  rule  to 
which  the  formal  source  gives  the  force  and  nature  of  law. 

The  formal  source  of  the  whole  body  of  the  civil  law  is  one 
and  the  same,  namely,  the  will  and  power  of  the  state  as  mani- 
fested in  courts  of  justice.  Whatever  rules  have  the  sanction  and 
authority  of  the  body  politic  in  the  administration  of  justice  have 
thereby  the  force  of  law ;  and  in  such  force  no  other  rules  whatever 
have  any  share.  The  matter  of  the  law  may  be  drawn  from  all 
kinds  of  material  sources,  but  for  its  legal  validity  it  must  look 
to  the  tribunals  of  the  state  and  to  them  alone.  Customary  law, 
for  example,  has  its  material  source  in  the  usages  of  those  who 
are  subject  to  it;  but  it  has  its  formal  source  in  the  will  of  the 
state,  no  less  than  statutory  law  itself. 

We  may  conveniently  distinguish  the  two  ideas  by  the  terms  "sources  of  law" 
and  "forms  of  law."  By  sources  of  law,  we  refer  to  the  methods  and  agencies 
by  which  rules  of  law  are  formulated;  by  forms  of  law,  we  refer  to  the  modes  in 
which  the  rules  are  expressed  —  the  literary  shapes  they  assume. 

In  the  common-law  system  there  arc  three  forms  of  law: 

(1)  Legislation,  under  which,  using  the  term  in  its  wider  sense,  we  have  in 

America  three  varieties: 

i.   constitutions.  ...  (  federal. 

..     r    ,       ,  •  11'-    statutes,    < 

11.   tcderal  treaties.  (  state. 

(2)  Judicial  Decisions.  The  decisions  of  the  superior  courts  in  England  and 
their  analogues  in  other  common-law  jurisdictions. 

(3)  Books  of  Authority. 

^  Gray,  Nature  and  Sources  of  Law,  Chaps.  VIII-XIII;  Austin,  Jurisprudence, 
Lects.  18-39;  Holland,  Jurisi)rudence,  Chap.  V;  Pollock,  First  Book  of 
Jurisprudence,  Part  II. 


LEGISLATION  211 


LEGISLATION 

Blackstone,    Commentaries,    I,    63. 

The  miiniciiial  law  of  England,  or  the  rule  of  civil  conduct 
prescribed  to  the  inhabitants  of  this  kingdom,  may  with  sufficient 
propriety  be  divided  into  two  kinds:  the  lex  non  scripta,  the 
unwritten  or  common  law;  and  the  lex  scripta,  the  written  or 
statute  law.^ 

The  lex  non  scripta,  or  unwritten  law,  includes  not  only  general 
customs,  or  the  common  law  properly  so  called ;  but  also  the  par- 
ticular customs  of  certain  parts  of  the  kingdom;  and  likewise  those 
particular  laws,  that  are  by  custom  observed  only  in  certain  courts 
and  jurisdictions. 

When  I  call  these  parts  of  our  law  leges  non  scriptae,  I  would 
not  be  understood  as  if  all  those  laws  were  at  present  merely  oral, 
or  communicated  from  the  former  ages  to  the  present  solely  by 
word  of  mouth.  It  is  true  indeed  that  in  the  profound  ignorance 
of  letters,  which  formerly  overspread  the  whole  western  world, 
all  laws  were  entirely  traditional,  for  this  plain  reason,  because 
the  nations  among  which  they  prevailed  had  but  little  idea  of 
writing.  Thus  the  British  as  well  as  the  GaUic  Druids  committed 
all  their  laws  as  well  as  learning  to  memory;  and  it  is  said  of  the 
primitive  Saxons  here,  as  well  as  their  brethren  on  the  Continent, 
that  leges  sola  memoria  et  iisu  retinebant.  But  with  us  at  present, 
the  monuments  and  evidences  of  our  legal  customs  are  contained 
in  the  records  of  the  several  courts  of  justice  in  books  of  reports 
and  judicial  decisions,  and  in  the  treatises  of  learned  sages  of  the 
profession,  preserved  and  handed  down  to  us  from  the  times  of 
highest  antiquity.  However,  I  therefore  style  these  parts  of  our 
law  leges  non  scriptae,  because  their  original  institution  and  author- 
ity are  not  set  down  in  writing,  as  acts  of  parliament  are,  but 
they  receive  their  binding  power,  and  the  force  of  laws,  by  long 
and  immemorial  usage,  and  by  their  universal  reception  through- 
out the  kingdom. 


^On  the  distinction  between  written  law  and  unwritten  law  see  Gray,  Nature 
and  Sources  of  Law,  §§342-346;  Clark,  Practical  Jurisprudence,  266-272; 
Pollock,  First  Book  of  Jurisprudence,  Part  II,  Chap.  I;  Austin,  Jurisprudence, 
Lect.  28. 


212  SOURCES  AND  FORMS  OF  LAW 

Blackstone,  Commentaries,  I,  85-91. 

Let  us  next  proceed  to  the  leges  scriptae,  the  written  laws  of 
the  kingdom,  which  are  statutes,  acts,  or  edicts,  made  by  the  king's 
majesty,  by  and  with  the  advice  and  consent  of  the  lords  spiritual 
and  temporal,  and  commons  in  parUament  assembled.  The  oldest 
of  these  now  extant,  and  printed  in  our  statute  books,  is  the  famous 
magna  charta,  as  confirmed  in  parliament  9  Hen.  IIL,  though 
doubtless  there  were  many  acts  before  that  time,  the  records  of 
which  are  now  lost,  and  the  determinations  of  them  perhaps  at 
present  currently  received  for  the  maxims  of  the  old  common 
law. 

The  manner  of  making  these  statutes  will  be  better  considered 
hereafter,  when  we  examine  the  constitution  of  parliaments.  At 
present  we  will  only  take  notice  of  the  different  kinds  of  statutes, 
and  of  some  general  rules  with  regard  to  their  construction. 

First,  as  to  their  several  kinds.  Statutes  are  either  general  or 
special,  public  or  private.  A  general  or  public  act  is  an  universal 
rule,  that  regards  the  whole  community;  and  of  this  the  courts 
of  law  are  bound  to  take  notice  judicially  and  ex  officio;  without 
the  statute  being  particularly  pleaded,  or  formally  set  forth  by  the 
party  w^ho  claims  an  advantage  under  it.  Special  or  private  acts 
are  rather  exceptions  than  rules,  being  those  which  only  operate 
upon  particular  persons,  and  private  concerns;  such  as  the  Romans 
entitled  senatus  decreta,  in  contradistinction  to  the  senatus  con- 
sidta,  which  regarded  the  whole  community;  and  of  these  (which 
are  not  promulgated  with  the  same  notoriety  as  the  former)  the 
judges  are  not  bound  to  take  notice,  unless  they  be  formally  shown 
and  pleaded.  Thus,  to  show  the  distinction,  the  statute  13  Eliz. 
c.  10,  to  prevent  spiritual  persons  from  making  leases  for  longer 
terms  than  twenty-one  years,  or  three  lives,  is  a  public  act;  it 
being  a  rule  prescribed  to  the  whole  body  of  spiritual  persons  in 
the  nation;  but  an  act  to  enable  the  bishop  of  Chester  to  make  a 
lease  to  A.  B.  for  sixty  years  is  an  exception  to  this  rule;  it  con- 
cerns only  the  parties  and  the  bishop's  successors;  and  is  there- 
fore a  private  act. 

Statutes  also  are  either  declaratory  of  the  common  kiw,  or  reme- 
dial of  some  defects  therein.  Declaratory,  where  the  old  custom 
of  the  kingdom  is  almost  fallen  into  disuse,  or  become  disputable; 
in  which  case  the  parliament  has  thought  proper,  in  perpetuum  rei 
testimonium,  and  for  avoiding  all  doubts  and  difficulties,  to  declare 


LEGISLATION  213 

what  the  common  law  is  and  ever  hath  been.  Thus  the  statute  of 
treasons,  25  Edw.  III.  cap.  2,  doth  not  make  any  new  species  of 
treasons,  but  only,  for  the  benefit  of  the  subject,  declares  and  enu- 
merates those  sev'eral  kinds  of  offence  which  before  were  treason 
at  the  common  law.  Remedial  statutes  are  those  which  are  made 
to  supply  such  defects,  and  abridge  such  superfluities  in  the  com- 
mon law,  as  arise  either  from  the  general  imperfection  of  all  human 
laws,  from  change  of  time  and  circumstances,  from  the  mistakes 
and  unadvised  determinations  of  unlearned  (or  even  learned) 
judges,  or  from  any  other  cause  whatsoever.  And  this  being  done, 
either  by  enlarging  the  common  law,  where  it  was  too  narrow  and 
circumscribed,  or  by  restraining  it  where  it  was  too  lax  and  luxuri- 
ant, hath  occasioned  another  subordinate  division  of  remedial  acts 
of  parliament  into  enlarging  and  restraining  statutes.  To  instance 
again  in  the  case  of  treason;  clipping  the  current  coin  of  the  king- 
dom was  an  offence  not  sufficiently  guarded  against  by  the  common 
law;  therefore  it  was  thought  expedient,  by  statute  5  Eliz.  c.  11, 
to  make  it  high  treason,  which  it  was  not  at  the  common  law:  so 
that  this  was  an  enlarging  statute.  At  common  law  also  spiritual 
corporations  might  lease  out  their  estates  for  any  term  of  years, 
till  prevented  by  the  statute  of  13  Eliz.  before  mentioned :  this  was, 
therefore,  a  restraining  statute. 

Secondly,  the  rules  to  be  observed  with  regard  to  the  construc- 
tion of  statutes  are  principally  these  which  follow. 

1.  There  are  three  points  to  be  considered  in  the  construction  of 
all  remedial  statutes;  the  old  law,  the  mischief,  and  the  remedy, 
that  is,  how  the  common  law  stood  at  the  making  of  the  act;  what 
the  mischief  was,  for  which  the  common  law  did  not  provide;  and 
what  remedy  the  parliament  hath  provided  to  cure  this  mischief. 
And  it  is  the  business  of  the  judges  so  to  construe  the  act  as  to 
suppress  the  mischief  and  advance  the  remedy.  Let  us  instance 
again  in  the  same  restraining  statute  of  13  Eliz.  c.  10:  By  the 
common  law,  ecclesiastical  corporations  might  let  as  long  leases 
as  they  thought  proper:  the  mischief  was,  that  they  let  long  and 
unreasonable  leases,  to  the  impoverishment  of  their  successors; 
the  remedy  applied  by  the  statute  was  by  making  void  all  leases 
by  ecclesiastical  bodies  for  longer  terms  than  three  lives,  or  twenty- 
one  years.  Now,  in  the  construction  of  this  statute,  it  is  held, 
that  leases,  though  for  a  longer  term,  if  made  by  a  bishop,  are  not 
void  during  the  bishop's  continuance  in  his  see;   or,  if  made  by  a 


214  SOURCES  AND  FORMS  OF  LAW 

dean  and  chapter,  they  are  not  void  during  the  continuance  of  the 
dean;  for  the  act  was  made  for  the  benefit  and  protection  of  the 
successor.  The  mischief  is  therefore  sufficiently  suppressed  by  va- 
cating them  after  the  determination  of  the  interest  of  the  grantors; 
but  the  leases,  during  their  continuance,  being  not  within  the  mis- 
chief, are  not  within  the  remedy. 

2.  A  statute,  which  treats  of  things  or  persons  of  an  inferior 
rank,  cannot  by  any  general  words  be  extended  to  those  of  a 
superior.  So  a  statute  treating  of  "deans,  prebendaries,  parsons, 
vicars,  and  others  having  spiritual  promotion,"  is  held  not  to 
extend  to  bishops,  though  they  have  spiritual  promotion,  deans 
being  the  highest  persons  named,  and  bishops  being  of  a  still 
higher  order. 

3.  Penal  statutes  must  be  construed  strictly.  Thus  the  statute 
I  Edw.  VI.  c.  12,  having  enacted  that  those  who  are  convicted  of 
stealing  horses  should  not  have  the  benefit  of  clergy,  the  judges 
conceived  that  this  should  not  extend  to  him  that  should  steal  but 
one  horse,  and  therefore  procured  a  new  act  for  that  purpose  in 
the  following  year.  And,  to  come  nearer  our  own  times,  by  the 
statute  14  Geo.  II.  c.  6,  stealing  sheep,  or  other  cattle,  was  made 
felony,  without  benefit  of  clergy.  But  these  general  words,  "or 
other  cattle,"  being  looked  upon  as  much  too  loose  to  create  a 
capital  offence,  the  act  was  held  to  extend  to  nothing  but  mere 
sheep.  And  therefore,  in  the  next  sessions,  it  was  found  necessary 
to  make  another  statute,  15  Geo.  II.  c.  34,  extending  the  former  to 
bulls,  cows,  oxen,  steers,  bullocks,  heifers,  calves,  and  lambs,  by 
name. 

4.  Statutes  against  frauds  are  to  be  liberally  and  beneficially 
expounded.  This  may  seem  a  contradiction  to  the  last  rule; 
most  statutes  against  frauds  being  in  their  consequences  penal.  But 
this  difference  is  here  to  be  taken,  where  the  statute  acts  upon  the 
offender,  and  inflicts  a  penalty,  as  the  pillory  or  a  fine,  it  is  then  to 
be  taken  strictly;  but  when  the  statute  acts  upon  the  offence,  by 
setting  aside  the  fraudulent  transaction,  here  it  is  to  be  construed 
liberally.  Upon  this  footing  the  statute  of  13  Eliz.  c.  6,  which 
avoids  all  gifts  of  goods,  etc.,  made  to  defraud  creditors  and  others, 
was  held  to  extend  by  the  general  words  to  a  gift  made  to  defraud 
the  queen  of  a  forfeiture. 

5.  One  part  of  a  statute  must  be  so  construed  by  another,  that 
the  whole  may  (if  possible)  stand:  nt  res  magis  valeat,  quam  pereat. 
As  if  land  be  vested  in  the  king  and  his  heirs  by  act  of  parliament 


LEGISLATION  215 

saving  the  right  of  A.  and  A.  has  at  that  time  a  lease  of  it  for  three 
years:  here  A.  shall  hold  it  for  his  term  of  three  years,  and  after- 
wards it  shall  go  to  the  king.  For  this  interpretation  furnishes 
matter  for  every  clause  of  the  statute  to  work  and  operate  upon. 
But, 

6.  A  saving,  totally  repugnant  to  the  body  of  the  act,  is  void. 
If,  therefore,  an  act  of  parliament  vests  land  in  the  king  and  his 
heirs,  saving  the  right  of  all  persons  whatsoever;  or  vests  the  land 
of  A.  in  the  king,  saving  the  right  of  A. ;  in  either  of  these  cases 
the  saving  is  totally  repugnant  to  the  body  of  the  statute,  and  (if 
good)  would  render  the  statute  of  no  effect  or  operation;  and  there- 
fore the  saving  is  void,  and  the  land  vests  absolutely  in  the  king. 

7.  Where  the  common  law  and  a  statute  differ,  the  common 
law  gives  place  to  the  statute;  and  an  old  statute  gives  place  to  a 
new  one.  And  this  upon  a  general  principle  of  universal  law,  that 
"leges  posteriores  pr lores  contra fias  abrogant:"  consonant  to  which 
it  was  laid  down  by  a  law  of  the  twelve  tables  at  Rome,  that  "quod 
populus  postremum  jussit,  id  jus  ratum  esto."  But  this  is  to  be 
understood  only  when  the  latter  statute  is  couched  in  negative 
terms,  or  where  its  matter  is  so  clearly  repugnant  that  it  necessarily 
implies  a  negative.  As  if  a  former  act  says,  that  a  juror  upon  such 
a  trial  shall  have  twenty  pounds  a  year;  and  a  new  statute  after- 
wards enacts,  that  he  shall  have  twenty  marks:  here  the  latter 
statute,  though  it  does  not  express,  yet  necessarily  implies  a  nega- 
tive, and  virtually  repeals  the  former.  For  if  twenty  marks  be 
made  qualification  sufficient,  the  former  statute  which  requires 
twenty  pounds  is  at  an  end.  But  if  both  acts  be  merely  affirmative, 
and  the  substance  such  that  both  may  stand  together,  here  the 
latter  does  not  repeal  the  former,  but  they  shall  both  have  a  con- 
current efficacy.  If  by  a  former  law  an  offence  be  indictable  at 
the  quarter-sessions,  and  a  latter  law  makes  the  same  offence 
indictable  at  the  assizes,  here  the  jurisdiction  of  the  sessions  is  not 
taken  away,  but  both  have  a  concurrent  jurisdiction,  and  the 
offender  may  be  prosecuted  at  either:  unless  the  new  statute  sub- 
joins express  negative  words,  as,  that  the  offence  shall  be  indictable 
at  the  assizes,  and  not  elsewhere. 

8.  If  a  statute,  that  repeals  another,  is  itself  repealed  afterwards, 
the  first  statute  is  hereby  revived,  without  any  formal  words  for 
that  purpose.  So  when  the  statutes  of  26  and  35  Hen.  VIII. 
declaring  the  king  to  be  the  supreme  head  of  the  church,  were 
repealed  by  a  statute  1  and  2  Philip  and  Mary,  and  this  latter  statute 


216  SOURCES  AND  FORMS  OF  LAW 

was  afterwards  repealed  by  an  act  of  1  Eliz.  there  needed  not  any 
express  words  of  revival  in  Queen  Elizabeth's  statute,  but  these 
acts  of  King  Henry  were  impliedly  and  virtually  revived. 

9.  Acts  of  parliament  derogatory  from  the  power  of  subsequent 
parliaments  bind  not.  So  the  statute  11  Hen.  VH.  c.  1,  which 
directs  that  no  person  for  assisting  a  king  de  facto  shall  be  attainted 
of  treason  by  act  of  parliament  or  otherwise,  is  held  to  be  good 
only  as  to  common  prosecutions  for  high  treason;  but  will  not 
restrain  or  clog  any  parliamentary  attainder.  Because  the  legis- 
lature, being  in  truth  the  sovereign  power,  is  always  of  equal,  always 
of  absolute  authority:  it  acknowledges  no  superior  upon  earth, 
which  the  prior  legislature  must  ha\e  been,  if  its  ordinances  could 
bind  a  subsequent  parliament.  And  upon  the  same  principle 
Cicero,  in  his  letters  to  Atticus,  treats  with  a  proper  contempt  these 
restraining  clauses,  which  endeavor  to  tie  up  the  hands  of  succeed- 
ing legislatures.  "When  you  repeal  the  law  itself,  (says  he,)  you  at 
the  same  time  repeal  the  prohibitory  clause,  which  guards  against 
such  repeal." 

10.  Lastly,  acts  of  parliament  that  are  impossible  to  be  performed 
are  of  no  validity:  and  if  there  arise  out  of  them  collaterally  any 
absurd  consequences,  manifestly  contradictory  to  common  reason, 
they  are,  with  regard  to  those  collateral  consequences,  void.^  I 
lay  down  the  rule  with  these  restrictions;  though  I  know  it  is  gen- 
erally laid  down  more  largely,  that  acts  of  parliament  contrary  to 
reason  are  void.  But  if  the  parliament  will  positively  enact  a  thing 
to  be  done  wiiich  is  unreasonable,  I  know  of  no  power  in  the 
ordinary  forms  of  the  constitution  that  is  vested  with  authority  to 
control  it;  and  the  examples  usually  alleged  in  support  of  this 
sense  of  the  rule  do  none  of  them  prove,  that,  where  the  main  object 
of  a  statute  is  unreasonal)le,  the  judges  are  at  liberty  to  reject  it; 
for  that  were  to  set  the  judicial  power  abo\e  that  of  the  legislature, 
which  would  be  subversive  of  all  goxernment.  But  where  some 
collateral  matter  arises  out  of  the  general  words,  and  happens  to  be 
unreasonable;  there  the  judges  are  in  decency -to  conclude  that  this 
consequence  was  not  foreseen  by  the  parliament,  and  therefore  they 
are  at  liberty  to  expound  the  statute  by  equity,  and  only  quoad  hoc 
disregard  it.  Thus  if  an  act  of  parliament  gives  a  man  power  to 
try  all  causes  that  arise  within  his  manor  of  Dale;  yet,  if  a  cause 
should  arise  in  which  he  himself  is  party,  the  act  is  construed  not 

1  See  Coxe,  Judicial  Power  and  Unconstitutional  Legislation,  73-74,  172-178. 


LEGISLATION  217 

to  extend  to  that,  because  it  is  unreasonable  tiiat  any  man  should 
determine  his  own  quarrel.  But,  if  we  could  conceive  it  possible 
for  the  parliament  to  enact,  that  he  should  try  as  well.his  own  causes 
as  those  of  other  persons,  there  is  no  court  that  has  power  to  defeat 
the  intent  of  the  legislature,  when  couched  in  such  evident  and 
express  words,  as  leave  no  doubt  whether  it  was  the  intent  of  the 
legislature  or  no. 

Kent,  Commentaries,  I,  454-468. 

A  statute,  when  duly  made,  takes  effect  from  its  date,  when  no 
time  is  fixed,  and  this  is  now  the  settled  rule.  It  was  so  declared 
by  the  Supreme  Court  of  the  United  States  in  Matthews  v.  Zane, 
and  it  was  likewise  so  adjudged  in  the  Circuit  Court  in  Massa- 
chusetts, in  the  case  of  The  Brig  Ann.  I  apprehend  that  the  same 
rule  prevails  in  the  courts  of  the  several  states,  and  that  it  cannot 
be  admitted  that  a  statute  shall,  by  any  fiction  or  relation,  have  any 
effect  before  it  was  actually  passed.  A  retroactive  statute  would 
partake  in  its  character  of  the  mischiefs  of  an  ex  post  facto  law,  as 
to  all  cases  of  crimes  and  penalties ;  and  in  every  other  case  relating 
to  contracts  or  property,  it  would  be  against  ev^ery  sound  principle. 
It  would  come  within  the  reach  of  the  doctrine,  that  a  statute  is 
not  to  have  a  retrospective  effect;  and  which  doctrine  was  very 
much  discussed  in  the  case  of  Dash  v.  Van  Kleeck,  and  shown  to  be 
founded  not  only  in  English  law,  but  on  the  principles  of  general 
jurisprudence.  A  retrospective  statute,  affecting  and  changing 
vested  rights,  is  very  generally  considered,  in  this  country,  as 
founded  on  unconstitutional  principles,  and  consequently  inopera- 
tive and  void.  But  this  doctrine  is  not  understood  to  apply  to 
remedial  statutes,  which  may  be  of  a  retrospective  nature,  provided 
they  do  not  impair  contracts,  or  disturb  absolute  vested  rights,  and 
only  go  to  confirm  rights  already  existing,  and  in  furtherance  of  the 
remedy,  by  curing  defects,  and  adding  to  the  means  of  enforcing 
existing  obligations.  Such  statutes  have  been  held  valid  when 
clearly  just  and  reasonable,  and  conducive  to  the  general  welfare, 
even  though  they  might  operate  in  a  degree  upon  existing  rights, 
as  a  statute  to  confirm  former  marriages  defectively  celebrated,  or 
a  sale  of  lands  defectively  made  or  acknowledged.  The  legal  rights 
affected  in  those  cases  by  the  statutes  were  deemed  to  have  been 
vested  subject  to  the  equity  existing  against  them,  and  which, 
the  statutes  recognized  and  enforced.  But  the  cases  cannot 
be   extended   beyond   the  circumstances  on  which    they   repose, 


218  SOURCES  AND  FORMS  OF  LAW 

without  putting  in  jeopardy  the  energy  and  safety  of  the  general 
principles. 

The  English  rule  formerly  was,  that  if  no  period  was  fixed  by 
the  statute  itself,  it  took  effect  by  relation,  from  the  first  day  of 
the  session  in  which  the  act  was  passed,  and  which  might  be 
some  weeks,  if  not  months,  before  the  act  received  the  royal  sanc- 
tion, or  even  before  it  had  been  introduced  into  Parliament.  This 
was  an  extraordinary  instance  of  the  doctrine  of  relation,  working 
gross  injustice  and  absurdity;  and  yet  we  find  the  rule  declared 
and  uniformly  adhered  to,  from  the  time  of  Henry  VI.  All  the 
judges  agreed,  in  the  case  of  Partridge  v.  Strange,  in  the  6th  Edweird 
VI.,  that  the  statute  was  to  be  accounted  in  law  a  perfect  act 
from  the  first  day  of  the  session;  and  all  persons  were  to  be 
punished  for  an  offence  done  against  it  after  the  first  day  of  the 
session  unless  a  certain  time  was  appointed  when  the  act  should 
take  effect.  In  the  case  of  The  King  v.  Thurston,  this  doctrine 
of  carrying  a  statute  back  by  relation  to  the  first  day  of  the  session 
was  admitted  in  the  K.  B.;  though  the  consequence  of  it  was  to 
render  an  act  murder  which  would  not  have  been  so  without  such 
relation.  The  case  of  The  Attorney-General  v.  Panter  is  another 
strong  instance  of  the  application  of  this  rigorous  and  unjust  rule 
of  the  common  law,  even  at  so  late  and  enlightened  a  period  of  the 
law  as  the  year  1772.  An  act  for  laying  a  duty  on  the  exportation 
of  rice  thereafter  to  be  exported,  received  the  royal  assent  on  the 
29th  of  June,  1767,  and  on  the  10th  of  June  of  that  year  the  de- 
fendants had  exported  rice.  After  the  act  passed,  a  duty  of  one 
hundred  and  fifteen  pounds  was  demanded  upon  the  prior  expor- 
tation, and  it  was  adjudged,  in  the  Irish  Court  of  Exchequer,  to 
be  payable.  The  cause  was  carried  by  appeal  to  the  British  House 
of  Lords,  on  the  ground  of  the  palpable  injustice  of  punishing  the 
party  for  an  act  innocent  and  lawful  when  it  is  done;  but  the 
decree  was  affirmed,  upon  the  opinion  of  the  twelve  judges,  that 
the  statute,  by  legal  relation,  commenced  from  the  first  day  of  the 
session.  The  K.  B.,  also,  in  Latless  v.  Holmes,  considered  the 
rule  to  be  too  well  settled  to  be  shaken,  and  that  the  court  could 
not  take  notice  of  the  great  hardship  of  the  case.  The  voice  of 
reason  at  last  prevailed;  and  by  the  statute  of  33  Geo.  III.  c.  13, 
it  was  declared  that  statutes  are  to  have  effect  only  from  the  time 
they  receive  the  royal  assent;  and  the  former  rule  was  abolished,  to 
use  the  words  of  the  statute,  by  reason  of  "its  great  and  manifest 
injustice." 


LEGISLATION  219 

There  is  a  good  deal  of  hardship  in  the  rule  as  it  now  stands, 
both  here  and  in  England;  for  a  statute  is  to  operate  from  the 
very  day  it  passes,  if  the  law  itself  does  not  establish  the  time. 
It  is  imposs'ble  in  any  state,  and  particularly  in  such  a  wide-spread 
dominion  as  that  of  the  United  States,  to  have  notice  of  the  existence 
of  the  law,  until  some  time  after  it  has  passed.  It  would  be  no 
more  than  reasonable  and  just,  that  the  statute  should  not  be 
deemed  to  operate  upon  the  persons  and  property  of  individuals,  or 
impose  pains  and  penalties  for  acts  done  in  contravention  of  it, 
until  the  law  was  duly  promulgated.  The  rule,  however,  is  deemed 
to  be  fixed  beyond  the  power  of  judicial  control,  and  no  time  is 
allowed  for  the  publication  of  the  law  before  it  operates,  when 
the  statute  itself  gives  no  time.  Thus,  in  the  case  of  The  Brig 
Ann,  the  vessel  was  libelled  and  condemned  for  sailing  from  New- 
buryport,  in  Massachusetts,  on  the  12th  of  January,  1808,  contrary 
to  the  act  of  Congress  of  the  9th  of  January,  1808,  though  it  was 
admitted  the  act  was  not  known  in  Newburyport  on  the  day  the 
brig  sailed.  The  court  admitted  that  the  objection  to  the  for- 
feiture of  the  brig  was  founded  on  the  principles  of  good  sense 
and  natural  equity;  and  that  unless  such  time  be  allowed  as  would 
enable  the  party,  with  reasonable  diligence,  to  ascertain  the  exist- 
ence of  the  law,  an  innocent  man  might  be  punished  in  his  person 
and  property  for  an  act  which  was  innocent,  for  aught  he  knew, 
or  could  by  possibility  have  known,  when  he  did  it. 

The  Code  Napoleon  adopted  the  true  rule  on  this  subject.  It 
declared  that  laws  were  binding  from  the  moment  their  promul- 
gation could  be  known,  and  that  the  promulgation  should  be  con- 
sidered as  known  in  the  department  of  the  imperial  residence  one 
day  after  that  promulgation,  and  in  each  of  the  other  departments 
of  the  French  empire  after  the  expiration  of  the  same  space  of 
time,  augmented  by  as  many  days  as  there  were  distances  of  twenty 
leagues  between  the  seat  of  government  and  the  place.  The  New 
York  Revised  Statutes  have  also  declared  the  very  equitable  rule 
that  every  law,  unless  a  different  time  be  prescribed  therein,  takes 
effect  throughout  the  state  on,  and  not  before,  the  20th  day  after 
the  day  of  its  final  passage. 

If  the  statute  be  constitutional  in  its  character,  and  has 
duly  gone  into  operation,  the  next  inquiry  is  respecting  its  mean- 
ing; and  this  leads  us  to  a  consideration  of  the  established 
rules  of  construction,  by  which  its  sense  and  operation  are  to  be 
understood. 


220  SOURCES  AND  FORMS  OF  LAW 

There  is  a  material  distinction  between  public  and  private  stat- 
utes, and  the  books  abound  with  cases  explaining  this  distinction  in 
its  application  to  particular  statutes.  It  is  sometimes  difficult  to 
draw  the  line  between  a  public  and  pri\ate  act,  for  statutes  fre- 
quently relate  to  matters  and  things  that  are  partly  public  and 
partly  private.  The  most  comprehensive,  if  not  the  most  precise, 
definition  in  the  English  books  is,  that  public  acts  relate  to  the 
kingdom  at  large,  and  private  acts  concern  the  particular  interest 
or  benefit  of  certain  individuals  or  of  particular  classes  of  men. 
Generally  speaking,  statutes  are  public ;  and  a  private  statute  may 
rather  be  considered  an  exception  to  a  general  rule.  It  operates 
upon  a  particular  thing  or  private  persons.  It  is  said  not  to  bind 
or  include  strangers  in  interest  to  its  provisions,  and  they  are  not 
bound  to  take  notice  of  a  prixate  act,  even  though  there  be  no 
general  saving  clause  of  the  rights  of  third  persons.  This  is  a 
safe  and  just  rule  of  construction;  and  it  was  adopted  by  the  Eng- 
lish courts  in  very  early  times,  and  does  great  credit  to  their  lib- 
erality and  spirit  of  justice.  It  is  supported  by  the  opinion  of  Sir 
Matthew  Hale,  in  Lucy  v.  Levington,  where  he  lays  down  the  rule 
to  be  that  though  every  man  be  so  far  a  party  to  a  private  act 
of  Parliament  as  not  to  gainsay  it,  yet  he  is  not  so  far  a  party  as  to 
give  up  his  interest.  To  take  the  case  stated  by  Sir  Matthew 
Hale,  suppose  a  statute  recites  that  whereas  there  was  a  contro- 
versy concerning  land  between  A.  and  B.,  and  enacts  that  A.  shall 
enjoy  it,  this  would  not  bind  the  interest  of  third  persons  in  that 
land,  because  they  are  not  strictly  parties  to  the  act,  but  strangers; 
and  it  would  be  manifest  injustice  that  the  statute  should  affect 
them.  This  rule,  as  to  the  limitation  of  the  operation  of  private 
statutes,  w^as  adopted  by  the  Supreme  Court  of  New  York,  and 
afterwards  by  the  Court  of  Errors,  in  Jackson  v.  Catlin.  It  is 
likewise  a  general  rule,  in  the  interpretation  of  statutes  limiting 
rights  and  interests,  not  to  construe  them  to  embrace  the  sover- 
eign power  or  government,  unless  the  same  be  expressly  named 
therein,  or  intended  by  necessary  implication.  There  is  another 
material  distinction  in  respect  to  public  and  private  statutes.  The 
courts  of  justice  are  bound,  ex  officio,  to  take  notice  of  public  acts 
without  their  being  pleaded,  for  they  are  part  of  the  general  law 
of  the  land,  which  all  persons,  and  particularly  the  judges,  are 
presumed  to  know.  Public  acts  cannot  be  put  in  issue  by  plea. 
Nul  tiel  record  cannot  be  pleaded  to  a  public  statute;  the  judges 
are  to  determine  the  existence  of  them  from  their  own  knowledge. 


LEGISLATION  221 

But  they  are  not  bound  to  take  notice  of  private  acts,  unless  they 
be  specially  pleaded,  and  shown  in  proof,  by  the  party  claiming 
the  effect  of  them.  In  England  the  existence  even  of  a  private 
statute  cannot  be  put  in  issue  to  be  tried  by  a  jury  on  the  plea  of 
mil  tiel  record,  though  this  may  be  done  in  New  York  under  the 
Revised  Statutes. 

The  title  of  the  act  and  the  preamble  to  the  act,  are,  strictly 
speaking,  no  parts  of  it.  They  may  serve  to  show  the  general 
scope  and  purport  of  the  act,  and  the  inducements  which  led  to 
its  enactment.  They  may,  at  times,  aid  in  the  construction  of  it; 
but  generally  they  are  loosely  and  carelessly  inserted,  and  are  not 
safe  expositors  of  the  law.  The  title  frequently  alludes  to  the 
subject-matter  of  the  act  only  in  general  or  sweeping  terms,  or 
it  alludes  only  to  a  part  of  the  multifarious  matter  of  which  the 
statute  is  composed.  The  constitution  of  New  Jersey,  in  1844,  has 
added  a  new  and  salutary  check  to  multitudinous  matter,  by  declar- 
ing that  every  law  shall  embrace  but  one  object,  and  that  shall  be 
expressed  in  the  title.  So  also  in  New  York,  by  the  revised  con- 
stitution of  1846,  art.  3,  sec.  16,  no  private  or  local  bill  shall  embrace 
more  than  one  subject,  and  that  shall  be  expressed  in  the  title. 
The  title,  as  it  was  observed  in  Uiiifed  States  v.  Fisher,  when 
taken  in  connection  with  other  parts,  may  assist  in  removing  am- 
biguities where  the  intent  is  not  plain;  for  when  the  mind  labors 
to  discover  the  intention  of  the  legislature,  it  seizes  everything,  even 
the  title,  from  which  aid  can  be  derived.  So  the  preamble  may  be 
resorted  to  in  order  to  ascertain  the  inducements  to  the  making 
of  the  statute;  but  when  the  words  of  the  enacting  clause  are 
clear  and  positive,  recourse  must  not  be  had  to  the  preamble.  Not- 
withstanding that  Lord  Coke  considers  the  preamble  as  a  key  to 
open  the  understanding  of  the  statute,  Mr.  Barrington,  in  his 
Observations  on  the  Statutes,  has  shown,  by  many  instances,  that 
a  statute  frequently  recites  that  which  is  not  the  real  occasion  of 
the  law,  or  states  that  doubts  existed  as  to  the  law,  when  in  fact 
none  had  existed.  The  true  rule  is,  as  was  declared  by  IVIr.  J. 
Buller  and  Mr.  J.  Grose,  in  Crespigny  v.  Wittenoom,  that  the  pre- 
amble may  be  resorted  to  in  restraint  of  the  generality  of  the 
enacting  clause,  when  it  would  be  inconvenient  if  not  restrained,  or 
it  may  be  resorted  to  in  explanation  of  the  enacting  clause,  if  it 
be  doubtful.  This  is  the  whole  extent  of  the  influence  of  the  title 
and  preamble  in  the  construction  of  the  statute.  The  true  mean- 
ing of  the  statute  is  generally  and  properly  to  be  sought  from  the 


222  SOURCES  AND  FORMS  OF  LAW 

body  of  the  act  itself.  But  such  is  the  imperfection  of  human 
language,  and  the  want  of  technical  skill  in  the  makers  of  the  law, 
that  statutes  often  give  occasion  to  the  most  perplexing  and  dis- 
tressing doubts  and  discussions,  arising  from  the  ambiguity  that 
attends  them.  It  requires  great  experience,  as  well  as  the  com- 
mand of  a  perspicuous  diction,  to  frame  a  law  in  such  clear  and  pre- 
cise terms  as  to  secure  it  from  ambiguous  expressions,  and  from  all 
doubt,  and  criticism  upon  its  meaning. 

It  is  an  established  rule  in  the  exposition  of  statutes,  that  the 
intention  of  the  lawgiver  is  to  be  deduced  from  a  view  of  the 
whole  and  of  every  part  of  a  statute,  taken  and  compared  together. 
The  real  intention,  when  accurately  ascertained,  will  always  pre- 
vail over  the  literal  sense  of  terms.  When  the  expression  in  a 
statute  is  special  or  particular,  but  the  reason  is  general,  the  expres- 
sion should  be  deemed  general.  Scire  leges,  non  hoc  est  verba  earum 
tenere  sed  vim  ac  potestatem,  and  the  reason  and  intention  of  the 
lawgiver  will  control  the  strict  letter  of  the  law,  when  the  latter 
would  lead  to  palpable  injustice,  contradiction  and  absurdity.  This 
was  the  doctrine  of  Modestinus,  Scsevola,  Paulus,  and  Ulpianus, 
the  most  illustrious  commentators  on  the  Roman  law.  W^hen  the 
words  are  not  explicit,  the  intention  is  to  be  collected  from  the 
context,  from  the  occasion  and  necessity  of  the  law,  from  the  mischief 
felt,  and  the  objects  and  the  remedy  in  view;  and  the  intention 
is  to  be  taken  or  presumed  according  to  what  is  consonant  to  reason 
and  good  discretion.  These  rules,  by  which  the  sages  of  the  law, 
according  to  Plowden,  have  ever  been  guided  in  seeking  for  the 
intention  of  the  legislature,  are  maxims  of  sound  interpretation, 
which  have  been  accumulated  by  the  experience,  and  ratified  by 
the  approbation  of  ages. 

The  words  of  a  statute,  if  of  common  use,  are  to  be  taken  in 
their  natural,  plain,  obvious,  and  ordinary  signification  and  import; 
and  if  technical  words  are  used,  they  are  to  be  taken  in  a  technical 
sense,  unless  it  clearly  appears  from  the  context  or  other  parts  of 
the  instrument,  that  the  words  were  intended  to  be  applied  differ- 
ently from  their  ordinary  or  their  legal  acceptation.  The  current 
of  authority  at  the  present  day,  said  Mr.  Justice  Bronson,  is  in 
favor  of  reading  statutes  according  to  the  natural  and  most  obvi- 
ous import  of  the  language,  without  resorting  to  subtle  and  forced 
constructions,  for  the  purpose  of  either  limiting  or  extending  their 
operation.  A  saving  clause  in  a  statute  is  to  be  rejected,  when  it  is 
directly  repugnant  to  the  purview  or  body  of  the  act,  and  could  not; 


LEGISLATION  223 

stand  without  rendering  the  act  inconsistent  and  destructive  of 
itself.  Lord  Coke,  in  Alton  Wood's  Case,  gives  a  particular  illus- 
tration of  this  rule,  by  a  case  which  would  be  false  doctrine  with  us, 
but  which  serves  to  show  the  force  of  the  rule.  Thus,  if  the  manor 
of  Uale  be  by  express  words  given  by  statute  to  the  king,  saving 
the  right  of  all  persons  interested  therein,  or  if  the  statute  vests 
the  lands  of  A.  in  the  king,  saving  the  rights  of  A.,  the  interest  of  the 
owner  is  not  saved,  inasmuch  as  the  saving  clause  is  repugnant  to 
the  grant;  and  if  it  were  allowed  to  operate,  it  would  render  the 
grant  void  and  nugatory.  But  there  is  a  distinction  in  some  of  the 
books  between  a  saving  clause  and  a  proviso  in  the  statute,  though 
the  reason  of  the  distinction  is  not  very  apparent.  It  was  held  by 
all  the  barons  of  the  Exchequer,  in  the  case  of  The  Attorney-General 
V.  The  Governor  and  Company  of  Chelsea  Waterworks,  that  where 
the  proviso  of  an  act  of  Parliament  was  directly  repugnant  to  the 
purview  of  it,  the  proviso  should  stand,  and  be  held  a  repeal  of  the 
purview,  because  it  speaks  the  last  intention  of  the  lawgiver.  It 
was  compared  to  a  will,  in  which  the  latter  part,  if  inconsistent 
with  the  former,  supersedes  and  revokes  it.  But  it  may  be  remarked 
upon  this  case  of  Fitzgibhon,  that  a  proviso  repugnant  to  the  pur- 
view of  the  statute  renders  it  equally  nugatory  and  void  as  a 
repugnant  saving  clause ;  and  it  is  difficult  to  see  why  the  act  should 
be  destroyed  by  the  one,  and  not  by  the  other,  or  why  the  proviso 
and  the  saving  clause,  when  inconsistent  with  the  body  of  the  act, 
should  not  both  of  them  be  equally  rejected.  There  is  also  a  tech- 
nical distinction  between  a  proviso  and  an  exception  in  a  statute. 
If  there  be  an  exception  in  the  enacting  clause  of  a  statute,  it  must 
be  negatived  in  pleading;  but  if  there  be  a  separate  proviso,  that 
need  not,  and  the  defendant  must  show  it  by  way  of  defence. 

Several  acts  in  pari  materia,  and  relating  to  the  same  subject, 
are  to  be  taken  together,  and  compared,  in  the  construction  of  them, 
because  they  are  considered  as  having  one  object  in  view,  and  as 
acting  upon  one  system.  This  rule  was  declared  in  the  cases  of 
Rex  V.  Loxdale,  and  The  Earl  of  Aileshury  v,  Pattison;  and  the 
rule  applies,  though  some  of  the  statutes  may  have  expired,  or  are 
not  referred  to  in  the  other  acts.  The  object  of  the  rule  is  to 
ascertain  and  carry  into  effect  the  intention;  and  it  is  to  be  inferred 
that  a  code  of  statutes  relating  to  one  subject  was  governed  by  one 
spirit  and  policy,  and  was  intended  to  be  consistent  and  harmonious 
in  its  several  parts  and  provisions.  Upon  the  same  principle, 
whenever  a  power  is  given  by  a  statute,  everything  necessary  to 


224  SOURCES  AND  FORMS  OF  LAW 

the  making  of  it  effectual  or  requisite  to  attain  the  end  is  implied. 
Quando  lex  aliquid  concedit,  concedere  videtur  et  id,  per  quod  devenitur 
ad  illiid. 

Statutes  are  likewise  to  be  construed  in  reference  to  the  prin- 
ciples of  the  common  law;  for  it  is  not  to  be  presumed  that  the 
legislature  intended  to  make  any  inno\'ation  upon  the  common  law, 
further  than  the  case  absolutely  required.  This  has  been  the  lan- 
guage of  the  courts  in  every  age;  and  when  we  consider  the  con- 
stant vehement  and  exalted  eulogy  which  the  ancient  sages  be- 
stowed upon  the  common  law  as  the  perfection  of  reason,  and  the 
best  birthright  and  noblest  inheritance  of  the  subject,  we  cannot 
be  surprised  at  the  great  sanction  given  to  this  rule  of  construc- 
tion. It  was  observed  by  the  judges,  in  the  case  of  Stoivell  v.  Zouche, 
that  it  was  good  for  the  expositors  of  a  statute  to  approach  as 
near  as  they  could  to  the  reason  of  the  common  law;  and  the 
resolution  of  the  barons  of  the  Exchequer,  in  Heydon's  case, 
was  to  this  effect.  For  the  sure  and  true  interpretation  of  all 
statutes,  whether  penal  or  beneficial,  four  things  are  to  be  con- 
sidered: What  was  the  common  law  before  the  act ;  what  was  the 
mischief  against  which  the  common  law  did  not  provide;  what 
remedy  the  Parliament  had  provided  to  cure  the  defect ;  and  the 
true  reason  of  the  remedy.  It  was  held  to  be  the  duty  of  the  judges 
to  make  such  a  construction  as  should  repress  the  mischief  and 
advance  the  remedy. 

In  the  construction  of  statutes,  the  sense  which  the  contemporary 
members  of  the  profession  had  put  upon  them  is  deemed  of  some 
importance,  according  to  the  maxim  that  contemporanea  expositio 
est  fortissima  in  lege.  Statutes  that  are  remedial,  and  not  penal, 
are  to  receive  an  equitable  interpretation,  by  which  the  letter  of  the 
act  is  sometimes  restrained,  and  sometimes  enlarged,  so  as  more 
effectually  to  meet  the  beneficial  end  in  view,  and  prevent  a  failure 
of  the  remedy.  They  are  construed  liberally,  and  tdtra  but  not  contra 
the  strict  letter.  This  may  be  illustrated  in  the  case  of  the  registry 
acts,  for  giving  priority  to  deeds  and  mortages,  according  to  the 
dates  of  the  registry.  If  a  person  claiming  under  a  registered  deed 
or  mortgage  had  notice  of  the  unregistered  prior  deed  when  he 
took  his  deed,  and  procured  the  registry  of  it  in  order  to  defeat 
the  prior  deed,  he  shall  not  prevail  with  his  prior  registry,  because 
that  would  be  to  counteract  the  intent  and  policy  of  the  statutes, 
which  were  made  to  prevent  and  not  to  upliold  frauds.  Statutes 
are  sometimes  merely  directory,  and,  in  that  case,  a  breach  of  the 


LEGISLATION  225 

direction  works  no  forfeiture  or  invalidity  of  the  thing  done;  but 
it  is  otherwise  if  the  statute  be  imperative. 

If  an  act  be  penal  and  temporary  by  the  terms  or  nature  of  it, 
the  party  offending  must  be  prosecuted  and  punished  before  the 
act  expires  or  is  repealed.  Though  the  offence  be  committed  before 
the  expiration  of  the  act,  the  party  cannot  be  punished  after  it 
has  expired,  unless  a  particular  provision  be  made  by  law  for  the 
purpose.  If  a  statute  be  repealed,  and  afterwards  the  repealing 
act  be  repealed,  this  revives  the  original  act;  and  if  a  statute  be 
temporary,  and  the  statute  be  repealed,  and  afterwards  the  re- 
pealing act  be  repealed,  this  revives  the  original  act;  and  if  a 
statute  be  temporary,  and  limited  to  a  given  number  of  years,  and 
expires  by  its  own  limitation,  a  statute  which  had  been  repealed 
and  supplied  by  it  is  ipso  facto  revived.  If,  before  the  expiration 
of  the  time,  a  temporary  statute  be  continued  by  another  act,  it 
was  formerly  a  question  under  which  statute  acts  and  proceedings 
were  to  be  considered  as  done.  In  the  case  of  the  College  of  Phy- 
sicians it  was  declared,  that  if  a  statute  be  limited  to  seven  years, 
and  afterwards  by  another  statute  be  made  perpetual,  proceed- 
ings ought  to  be  referred  to  the  last  statute,  as  being  the  one  in 
force.  But  this  decision  was  erroneous,  and  contrary  to  what  had 
been  said  by  Popham,  Ch.  J.,  in  Dinghy  v.  Moor,  and  all  acts  civil 
and  criminal,  are  to  be  charged  under  the  authority  of  the  first  act. 
Thus,  in  the  case  of  Rex  v.  Morgan,  on  an  indictment  for  perjury, 
in  an  affidavit  to  hold  to  bail,  it  was  laid  to  have  been  taken  by 
virtue  of  the  statute  of  12  Geo.  I.,  which  was  a  temporary  law  for 
five  years,  and  which  was  afterwards,  and  before  the  expiration  of 
it,  continued  by  the  act  of  5  Geo.  II.,  with  some  alterations.  Lord 
Chief  Justice  Hardwicke  said,  that  when  an  act  was  continued  by 
a  subsequent  act,  everybody  was  estopped  to  say  the  first  act  was 
not  in  force;  and  as  the  act  in  question  was  not  altered  in  respect 
to  bail,  the  offence  was  properly  laid  to  have  been  done  against  the 
first  act.  In  Shipman  v.  Henhest,  the  King's  Bench  held,  that  if 
a  statute  be  permitted  even  to  expire,  and  be  afterwards  revived 
by  another  statute,  the  law  derives  its  force  from  the  first  statute, 
which  is  to  be  considered  in  operation  by  means  of  revival.  If, 
however,  a  temporary  act  be  revived  after  it  has  expired,  the  inter- 
mediate time  is  lost,  without  a  special  provision  reaching  to  the 
intermediate  time. 

If  a  statute  inflicts  a  penalty  for  doing  an  act,  the  penalty  im- 
plies a  prohibition,  and  the  thing  is  unlawful,  though  there  be  no 


226  SOURCES  AND  FORMS  OF  LAW 

prohibitory  words  in  the  statute.  Lord  Holt,  in  Bartleft  v.  Viner, 
appHed  this  rule  to  the  case  of  a  statute  inflicting  a  penalty  for 
making  a  particular  contract,  such  as  a  simoniacal  or  usurious  con- 
tract; and  he  held  that  the  contract  was  void  under  the  statute, 
though  there  was  a  penalty  imposed  for  making  it.  The  principle 
is  now  settled,  that  the  statutory  prohibition  is  equally  efficacious, 
and  the  illegality  of  a  breach  of  the  statute  the  same  whether  a 
thing  be  prohibited  absolutely  or  only  under  a  penalty.  The  New 
York  Revised  Statutes  make  the  doing  an  act  contrary  to  a  statute 
prohibition  a  misdemeanor,  though  no  penalty  be  imposed.  Whether 
any  other  punishment  can  be  inflicted  than  the  penalty  given  by 
the  statute  has  been  made  a  serious  question.  The  Court  of 
K.  B.,  in  Rexv.  Robinson,  laid  down  this  distinction,  that  where 
a  statute  created  a  new  ofifence,  by  making  unlawful  what  was 
lawful  before,  and  prescribed  a  particular  sanction,  it  must  be  pur- 
sued, and  none  other;  but  where  the  offence  was  punishable  at 
common  law,  and  the  statute  prescribed  a  particular  remedy, 
without  any  negative  words,  express  or  implied,  the  sanction  was 
cumulative,  and  did  not  take  away  the  common-law  punishment, 
and  either  remedy  might  be  pursued.  The  same  distinction  had 
been  declared  long  before;  and  the  proper  inquiry  in  such  cases 
is,  was  the  doing  of  the  thing  for  which  the  penalty  is  inflicted 
lawful  or  unlawful  before  the  passing  of  the  statute?  If  it  was  no 
offence  before,  the  party  offending  is  liable  to  the  penalty,  and  to 
nothing  else.  The  distinction  between  statutory  offences,  which 
are  mala  prohibita  only,  or  mala  in  se,  is  now  exploded,  and  a  breach 
of  the  statute  law,  in  either  case,  is  equally  unlawful  and  equally 
a  breach  of  duty;  and  no  agreement  founded  on  the  contempla- 
tion of  either  class  of  offences  will  be  enforced  at  law  or  in  equity. 
There  are  a  number  of  other  rules  of  minor  importance,  relative 
to  the  construction  of  statutes,  and  it  will  be  sufficient  to  observe, 
generally,  that  the  great  object  of  the  maxims  of  interpretation  is 
to  discover  the  true  intention  of  the  law;  and  whenever  that  in- 
tention can  be  indubitably  ascertained,  and  it  be  not  a  violation 
of  constitutional  right,  the  courts  are  bound  to  oI)cy  it,  whatever 
may  be  their  opinion  of  its  wisdom  or  policy.  But  it  w^ould  be 
quite  visionary  to  expect,  in  any  code  of  statute  law,  such  precision 
of  thought  and  perspicuity  of  language  as  to  preclude  all  uncer- 
tainty as  to  the  meaning,  and  exempt  the  community  from  the  evils 
of  vexatious  doubts  and  litigious  interpretations.  Lord  Coke  com- 
plained, that  in  his  day  great  questions  had  oftentimes  arisen  "upon 


JUDICIAL  DECISIONS  227 

acts  of  Parliament,  overladen  with  provisos  and  additions,  and 
many  times  on  a  sudden  penned  or  corrected,  by  men  of  none,  or 
very  little  judgment  in  law." 

When  Statutes  Take  Effect: 

(a)  At  common  law.  If  no  date  was  fixed  in  the  statute,  it  took  effect  by  rela- 
tion from  the  first  day  of  the  session  at  which  it  was  passed. 

(b)  In  England.  By  a  statute  of  George  III.,  statutes  take  effect  from  the 
date  when  they  receive  the  royal  assent,  unless  a  different  date  is  fixed. 

(c)  Federal  statutes.  These  take  effect  from  the  date  of  approval  by  the  presi- 
dent, unless  a  different  date  is  fixed. 

(d)  State  statutes.  This  matter  is  governed  by  constitutional  or  statutory 
provisions  in  the  several  states,  and  there  is  no  uniform  rule.  Most  of  the  states 
provide  a  certain  time  after  passage  and  approval  at  which  statutes  shall  take 
effect. 


JUDICIAL    DECISIONS! 

Blackstone,  Commentaries,  I,  69-72. 

For  it  is  an  established  rule  to  abide  by  former  precedents,  where 
the  same  points  come  again  in  litigation:  as  well  to  keep  the  scale 
of  justice  even  and  steady,  and  not  liable  to  waver  with  every  new 
judge's  opinion ;  as  also  because  the  law  in  that  case  being  solemnly 
declared  and  determined,  what  before  was  uncertain,  and  perhaps 
indifferent,  is  now  become  a  permanent  rule,  which  it  is  not  in  the 
breast  of  any  subsequent  judge  to  alter  or  vary  from  according 
to  his  private  sentiments:  he  being  sworn  to  determine,  not  accord- 
ing to  his  own  private  judgment,  but  according  to  the  known  laws 
and  customs  of  the  land;  not  delegated  to  pronounce  a  new  law, 
but  to  maintain  and  expound  the  old  one.  Yet  this  rule  admits  of 
exception,  where  the  former  determination  is  most  evidently  con- 
trary to  reason;  much  more  if  it  be  clearly  contrary  to  the  divine 
law.  But  e\'en  in  such  cases  the  subsequent  judges  do  not  pretend 
to  make  a  new  law,  but  to  vindicate  the  old  one  from  misrepre- 
sentation. For  if  it  be  found  that  the  former  decision  is  mani- 
festly absurd  or  unjust,  it  is  declared,  not  that  such  a  sentence  was 
bad  law,  but  that  it  was  not  law ;  that  is,  that  it  is  not  the  established 
custom  of  the  realm,  as  has  been  erroneously  determined.  And 
hence  it  is  that  our  lawyers  are  with  justice  so  copious  in  their 
encomiums  on  the  reason  of  the  common  law;  that  they  tell  us, 
that  the  law  is  the  perfection  of  reason,  that  it  always  intends  to 

^  In  this  connection  the  student  may  read  profitably  Wambaugh,  The  Study 
of  Cases.     Reference  may  be  made  also  to  Black,  Judicial  Precedents. 


228  SOURCES  AND  FORMS  OF  LAW 

conform  thereto,  and  that  what  is  not  reason  is  not  law.  Not  that 
the  particular  reason  of  every  rule  in  the  law  can  at  this  distance 
of  time  be  always  precisely  assigned ;  but  it  is  sufficient  that  there 
be  nothing  in  the  rule  flatly  contradictory  to  reason,  and  then  the 
law  will  presume  it  to  be  well  founded.  And  it  hath  been  an  an- 
cient observation  in  the  laws  of  England,  that  whenever  a  standing 
rule  of  law  of  which  the  reason  perhaps  could  not  be  remembered 
or  discerned,  hath  been  wantonly  broken  in  upon  by  statutes  or 
new  resolutions,  the  wisdom  of  the  rule  hath  in  the  end  appeared 
from  the  inconveniences  that  have  followed  the  innovation. 

The  doctrine  of  the  law  then  is  this:  that  precedents  and  rules 
must  be  followed,  unless  flatly  absurd  or  unjust;  for  though  their 
reason  be  not  obvious  at  first  view,  yet  we  owe  such  a  deference  to 
former  times  as  not  to  suppose  that  they  acted  wholly  without  con- 
sideration. To  illustrate  this  doctrine  by  examples.  It  has  been 
determined,  time  out  of  mind,  that  a  brother  of  the  half  blood 
shall  never  succeed  as  heir  to  the  estate  of  his  half  brother,  but  it 
shall  rather  escheat  to  the  king  or  other  superior  lord.  Now  this 
is  a  positive  law,  fixed  and  established  by  custom,  which  custom  is 
evidenced  by  judicial  decisions,  and  therefore  can  never  be  departed 
from  by  any  modern  judge  without  a  breach  of  his  oath  and 
the  law.  For  herein  there  is  nothing  repugnant  to  natural  jus- 
tice; though  the  artificial  reason  of  it,  drawn  from  the  feodal  law, 
may  not  be  quite  obvious  to  everybody.  And  therefore,  though 
a  modern  judge,  on  account  of  a  supposed  hardship  upon  the  half 
brother,  might  wish  it  had  been  otherwise  settled,  yet  it  is  not  in 
his  power  to  alter  it.  But  if  any  court  were  now  to  determine, 
that  an  elder  brother  of  the  half  blood  might  enter  upon  and  seize 
any  lands  that  were  purchased  by  iiis  younger  brother,  no  subse- 
quent judges  would  scruple  to  declare  that  such  prior  determination 
was  unjust,  was  unreasonable,  and  therefore  was  not  law.  So  that 
the  law,  and  the  opinion  of  the  judge,  are  not  always  convertible 
terms,  or  one  and  the  same  thing;  since  it  sometimes  may  happen 
that  the  judge  may  mistake  the  law.  Upon  the  whole,  however, 
we  may  take  it  as  a  general  rule,  "that  the  decisions  of  courts  of 
justice  are  the  evidence  of  what  is  common  law":  in  the  same 
manner  as,  in  the  civil  law,  what  the  emperor  had  once  determined 
was  to  scr\'e  for  a  guide  for  the  future. 

The  decisions,  therefore,  of  courts  are  held  in  the  highest  regard, 
and  are  not  only  preserved  as  authentic  records  in  the  treasuries 
of  the  several  courts,  but  are  handed  out  to  public  view  in  the 


JUDICIAL  DECISIONS  229 

numerous  volumes  of  reports  which  furnish  the  lawyer's  library. 
These  reports  are  histories  of  the  several  cases,  with  a  short  sum- 
mary of  the  proceedings,  which  are  preserved  at  large  in  the  record; 
the  arguments  on  both  sides,  and  the  reasons  the  court  gave  for 
its  judgment;  taken  down  in  short  notes  by  persons  present  at  the 
determination.  And  these  serve  as  indexes  to,  and  also  to  explain 
the  records  which  always,  in  matters  of  consequence  and  nicety, 
the  judges  direct  to  be  searched.  The  reports  are  extant  in  a 
regular  series  from  the  reign  of  King  Edward  the  Second  inclusive; 
and  from  this  time  to  that  of  Henry  the  Eighth,  were  taken  by  the 
prothonotaries,  or  chief  scribes  of  the  court,  at  the  expense  of  the 
crown,^  and  published  annually,  whence  they  are  known  under  the 
denomination  of  the  year  books.  And  it  is  much  to  be  wished  that 
this  beneficial  custom  had,  under  proper  regulations,  been  continued 
to  this  day;  for  though  King  James  the  First,  at  the  instance  of 
Lord  Bacon,  appointed  two  reporters  with  a  handsome  stipend  for 
this  purpose,  yet  that  wise  institution  was  soon  neglected,  and 
from  the  reign  of  Henry  the  Eighth  to  the  present  time  this  task  has 
been  executed  by  many  private  and  contemporary  hands ;  who  some- 
times through  haste  and  inaccuracy,  sometimes  through  mistake 
and  want  of  skill,  have  published  very  crude  and  imperfect  (per- 
haps contradictory)  accounts  of  one  and  the  same  determination. 
Some  of  the  most  valuable  of  the  ancient  reports  are  those  published 
by  Lord  Chief  Justice  Coke;  a  man  of  infinite  learning  in  his  pro- 
fession, though  not  a  little  infected  with  the  pedantry  and  quaint- 
ness  of  the  times  he  lived  in,  which  appear  strongly  in  all  his  works. 
However,  his  writings  are  so  highly  esteemed,  that  they  are  gen- 
erally cited  without  the  author's  name. 

Wilson  v.  Bumstead,  Supreme  Court  of  Nebraska,  1881 
(12  Nebr.  1). 
Maxwell,  J.:  In  the  application  of  the  principles  of  the  com- 
mon law,  where  the  precedents  are  unanimous  in  the  support  of 
a  proposition,  there  is  no  safety  but  in  a  strict  adherence  to  such 
precedents.  If  the  court  will  not  follow  established  rules,  rights 
are  sacrificed,  and  lawyers  and  litigants  are  left  in  doubt  and  un- 
certainty, while  there  is  no  certainty  in  regard  to  what,  upon  a 

^  This  tradition  that  the  Year  Books  were  the  work  of  reporters  appointed  and 
paid  by  the  crown  seems  to  have  been  shown  to  have  no  foundation.  But  see 
the  arguments  on  both  sides  stated  in  27  Law  Quart.  Rev.  278. 


230  SOURCES  AXD  FORMS  OF  LAW 

given  state  of  facts,  the  decision  of  the  court  will  be.  If  the  common 
law  rule  is  inadequate,  the  proper  course  is  by  legislation,  and  such 
was  the  course  pursued  in  this  case.  As  no  action  would  lie  at  com- 
mon law,  the  remedy  is  entirely  statutory,  and  the  conditions,  upon 
which  the  right  to  maintain  the  action  rest,  must  be  complied  with. 

Attorney  General  v.  Lum,  Supreme  Court  of  Wisconsin, 
1853  (2  W^is.  507). 

Smith,  J.:  This  opinion  of  the  Supreme  Court,  pronounced  by 
the  Chief  Justice,  would  seem  to  be  conclusive,  as  to  the  right  here 
sought  to  be  enforced.  But  it  is  contended  that  the  opinions  pro- 
nounced by  the  Supreme  Court,  are  not  of  binding  authority  upon 
the  Circuit  Court,  and  it  is  intimated,  that  though  inferior  courts 
may  treat  such  opinions  never  so  contemptuously,  yet  the  mere 
remittitur  certified  and  transmitted  by  our  clerk,  is  the  only  author- 
itative direction  to  the  court  below. 

This  is  not  the  correct  view  of  the  law.  It  is  not  intended  to 
be  declared  that  all  the  reasoning,  and  instances  of  illustration, 
introduced  in  an  opinion  of  this  court,  are  to  be  adopted  by  inferior 
tribunals,  from  which  cases,  or  matters  may  come  here  by  appeal, 
writ  of  error,  or  otherwise;  but  it  is  insisted  and  declared  that  the 
opinion  of  the  court  upon  the  points  in  judgment,  presented  and 
passed  upon  in  cases  brought  here  for  adjudication,  are  the  law  of 
the  land,  until  overruled  or  otherwise  annulled,  and  that  inferior 
courts  and  tribunals  must  yield  obedience  to  the  law  thus  de- 
clared. We  should  be  unfaithful  to  the  high  trust  committed  to 
us,  should  we  fail  to  discharge  this  solemn  duty  of  enforcing  the 
law  in  this  respect,  upon  the  faithful  and  complete  execution  of 
which,  the  most  sacred  and  vital  rights  of  the  citizen  must  frequently 
depend;  and  every  inferior  officer,  judicial  or  ministerial,  must 
know  and  be  informed  that  such  acquiescence  and  obedience  will 
be  rigidly  exacted,  and  resistance  will  be  most  effectually  subdued. 

Johnson  v.  Fall,  Supreme  Court  of  California,  185G  (6  Cal. 
359.) 

The  opinion  of  the  Court  was  delivered  by  Mr.  Justice  Terry. 
Mr.  Chief  Justice  Murray  concurred. 

At  common  law  all  wagers  were  recoverable,  except  such  as  were 
prohibited  by  law,  were  against  public  policy,  or  calculated  to  affect 
the  interest,  character  or  feelings  of  third  parties.  This  principle 
is  too  well  established  to  require  either  argument  or  authority.    But 


JUDICIAL  DECISIONS  231 

it  is  contended  by  counsel  that,  inasmuch  as  the  English  judges 
have  uniformly  looked  with  disfavor  on  this  class  of  cases,  and 
have  frequently  taken  occasion  to  express  their  regret  that  a  differ- 
ent rule  had  not  been  established,  this  Court  should,  as  the  ques- 
tion is  for  the  first  time  presented  in  the  Slate,  without  regard  to 
precedent,  declare  all  wagers  illegal,  on  account  of  their  manifest 
immoral  tendency. 

Such  a  course  would,  we  conceive,  be  a  usurpation  of  functions 
properly  belonging  to  another  department  of  government.  The 
common  law  having  been  adopted  as  the  rule  of  decision  in  this 
State,  it  is  our  duty  to  enforce  it,  leaving  all  questions  of  its  policy, 
as  applied  to  a  particular  class  of  contracts,  for  the  consideration 
of  the   Legislature. 

The  questions  which  are  made  in  the  argument  of  counsel,  as 
to  the  general  utility  of  the  work,  which  was  the  subject  of  the 
wager,  its  effect  upon  the  interest  of  third  parties,  as  well  as  the 
tendency  of  the  wager  to  advance  or  retard  such  work,  are,  we 
conceive,  questions  of  fact,  which  cannot  properly  be  decided  by  a 
Court  on  demurrer. 

The  judgment  of  the  Court  below  is  reversed,  and  the  cause 
remanded. 

McDowell  v.  Oyer,  Supreme  Court  of  Pennsylvania,  1853 
(21  Pa.  St.  417). 

Black,  C,  J.:  ...  The  judgment  we  are  about  to  give  might 
well  be  rested  on  the  mere  authority  of  the  cases  I  have  cited. 
When  a  point  has  been  solemnly  ruled  by  the  tribunal  of  the  last 
resort,  after  full  argument  and  with  the  assent  of  all  the  judges, 
we  have  the  highest  evidence  which  can  be  produced  in  favor  of 
the  unwritten   law. 

It  is  sometimes  said  that  this  adherence  to  precedent  is  slavish; 
that  it  fetters  the  mind  of  the  judge,  and  compels  him  to  decide 
without  reference  to  principle.  But  let  it  be  remembered  that  stare 
decisis  is  itself  a  principle  of  great  magnitude  and  importance.  It 
is  absolutely  necessary  to  the  formation  and  permanence  of  any 
system  of  jurisprudence*.  Without  it  we  may  fairly  be  said  to 
have  no  law;  for  law  is  a  fixed  and  established  rule,  not  depending 
in  the  slightest  degree  on  the  caprice  of  those  who  may  happen  to 
administer  it.  I  take  it  that  the  adjudications  of  this  Court,  when 
they  are  free  from  absurdity,  not  mischievous  in  practice,  and  con- 
sistent with  one  another,  are  the  law  of  the  land.     It  is  this  law 


232  SOURCES  AND  FORMS  OF  LAW 

which  we  arc  bound  to  execute,  and  not  any  "higher  law,"  manu- 
factured for  each  special  occasion  out  of  our  own  private  feeHngs 
and  opinions.  If  it  be  wrong,  the  government  has  a  department 
whose  duty  it  is  to  amend  it,  and  the  responsibihty  is  not  in  any 
wise  thrown  upon  the  judiciary.  The  inferior  tribunals  follow  our 
decisions,  and  the  people  conform  to  them  because  they  take  it 
for  granted  that  what  we  ha\-e  said  once  we  will  seiy  again.  There 
being  no  superior  power  to  define  the  law  for  us  as  we  define  it  for 
others,  we  ought  to  be  a  law  unto  ourselves.  If  we  are  not,  we 
are  without  a  standard  altogether.  The  uncertainty  of  the  law — 
an  uncertainty  inseparable  from  the  nature  of  the  science  —  is  a 
great  e\al  at  best  and  we  would  aggravate  it  terribly  if  we  could  be 
lilown  about  by  every  wind  of  doctrine,  holding  for  true  today 
what  we  repudiate  as  false  tomorrow. 

Of  course  T  am  not  saying  that  we  must  consecrate  the  mere 
blunders  of  those  who  went  before  us,  and  stumble  every  time  we 
come  to  the  place  where  they  have  stumbled.  A  palpable  mistake, 
violating  justice,  reason,  and  law,  must  be  corrected,  no  matter  by 
whom  it  may  have  been  made.  There  are  cases  in  our  books  which 
bear  such  marks  of  haste  and  inattention,  that  they  demand  recon- 
sideration. There  are  some  which  must  be  disregarded,  because 
they  cannot  be  reconciled  with  others.  There  are  old  decisions 
of  which  the  authority  has  become  obsolete,  by  a  total  alteration 
in  the  circumstances  of  the  country  and  the  progress  of  opinion. 
Tempora  mutantur.  We  change  with  the  change  of  the  times,  as 
necessarily  as  we  move  with  the  motion  of  the  earth.  But  in 
ordinary  cases,  to  set  up  our  mere  notions  above  the  principles 
which  the  country  has  been  acting  upon  as  settled  and  established, 
is  to  make  ourselves  not  the  ministers  and  agents  of  the  law,  but  the 
masters  of  the  law  and  the  tyrants  of  the  i)eople. 

Pratt  v.  Brown,  Supreme  Court  of  Wisconsin,  1854  (3  Wis. 
603). 
Smith,  J.:  These  and  kindred  propositions  were  presented  to  the 
Supreme  Court  under  its  fonner  organization,  in  the  case  of  Stevens 
V.  Marshall,  3  Chand.  222,  and  that  case  is  strongly  urged  upon 
us  to  induce  us  to  concur  therein;  for  it  cannot  be  denied  that  a 
majority  of  the  court  did  hold  in  conformity  with  the  propositions 
here  insisted  upon.  As,  however,  these  are  questions  affecting  not 
merely  the  routine  of  practice,  nor  rights  determined  by  the  lapse 
of  time,  or  palpable  legislative  enactment,  we  do  not  feel  at  liberty 


JUDICIAL  DECISIONS  233 

as  we  would  wish,  to  throw  ourselves  back  upon  that  decision,  and 
thus  evade  further  responsibility.  It  is  true  that  when  a  principle 
of  law,  doubtful  in  its  character,  or  uncertain  in  the  subject-matter 
of  its  application,  has  been  settled  by  a  series  of  judicial  decisions, 
and  acquiesced  in  for  a  considerable  time,  and  important  rights  and 
interests  have  become  established  under  such  decisions,  courts  will 
hesitate  long  before  they  will  attempt  to  overturn  the  result  so  long 
established.  So  when  it  is  apparently  indifferent,  which  of  two  or 
more  rules  is  adopted,  which  one  shall  have  been  adopted  by  judi- 
cial sanction,  it  will  be  adhered  to,  although  it  may  not,  at  the  mo- 
ment, appear  to  be  the  preferable  rule.  But  when  a  question  arises 
involving  important  private  or  public  rights,  extending  through  all 
coming  time,  has  been  passed  upon  on  a  single  occasion,  and 
which  decision  can  in  no  just  sense  be  said  to  have  been  acquiesced 
in,  it  is  not  only  the  right,  but  the  duty  of  the  court,  when  properly 
called  upon,  to  re-examine  the  questions  involved,  and  again  sub- 
ject them  to  judicial  scrutiny.  We  are  by  no  means  unmindful 
of  the  salutary  tendency  of  the  rule  stare  decisis,  but  at  the  same 
time,  w^e  cannot  be  unmindful  of  the  lessons  furnished  by  our  own 
consciousness,  as  well  as  by  judicial  history,  of  the  liability  to  error, 
and  the  advantages  of  review. 

We  therefore  enter  upon  the  discussion  of  the  questions  involved 
in  this  case,  not  for  the  purpose  of  again  reopening  the  subject- 
matter  thereof  to  criticism  or  investigation,  but  for  the  purpose 
of  discharging  our  full  duty  in  the  premises. 

Etting  v.  Bank  of  the  United  States,  Supreme  Court  of 
THE  United  States,  1826  (11  Wheat.  59). 
Marshall,  C.  J.:  In  the  very  elaborate  arguments  which  have 
been  made  at  the  bar,  several  cases  have  been  cited  which  ha\'e 
been  attentively  considered.  No  attempt  will  be  made  to  analyze 
them  or  to  decide  on  their  application  to  the  case  before  us,  because 
the  judges  are  divided  respecting  it.  Consequently,  the  principles 
of  law  which  have  been  argued  cannot  be  settled ;  but  the  judgment 
is  affirmed,  the  court  being  divided  in  opinion  upon  it.  Judgment 
affirmed. 

Weaver  v.  Gardner,  Supreme  Court  of  Kansas,   1875  (U 
Kan.  347). 
Brewer,  J.:      This  is  not  an  open  question  in  this  court.       As 
long  ago  as  the  case  of  George  v.  Hat  ton,  2  Kas.  333,  it  was  decided 


234  SOURCES  AND  FORMS  OF  LAW 

that  In  an  action  like  this  no  indorsement  was  required  on  the 
summons,  it  not  being  an  action  for  the  recovery  of  money  only, 
but  that  if  an  amount  was  indorsed,  it  was  not  error  to  take  judg- 
ment for  that  amount  together  with  a  decree  for  the  sale  of  the  land. 
Counsel  contends  that  the  decision  in  that  case  properly  rests  on 
other  grounds,  and  that  the  comments  of  Chief  Justice  Crozier 
upon  this  question  are  mere  obiter  dicta.  We  do  not  so  imderstand 
it.  It  was  made  one  of  the  points  announced  in  the  syllabus, 
and  the  decision  may  as  fairly  be  said  to  rest  upon  this  as  upon 
any  other  ground.  We  are  aware  of  contrary  rulings  in  Ohio: 
Williams  v.  Hamlin,  1  Handy,  95;  1  Nash's  PI.  &  Prac,  4th  ed., 
p.  67.  And  if  this,  was  an  open  question  we  might  be  disposed  to 
give  considerable  weight  to  these  authorities.  But  being  merely 
a  question  of  practice,  and  ha\-ing  been  once  settled  in  this  state, 
we  deem  it  better  to  adhere  to  that  ruling.  Doubtless  it  has  been 
accepted  by  the  profession  during  the  last  ten  years  as  the  correct 
interpretation  of  the  statute,  and  many  rights  founded  upon  it. 
Stare  decisis  is  eminently  appropriate  in  such  cases. 

AuD  V.  Magruder,  Supreme  Court  of  California,  1858  (10 
Cal.  282.) 
Baldwin,  J.:  In  oxerruling  the  case  of  Bryan  v.  Berry,  we  feel 
less  reluctance,  because  we  think  that  the  principle  there  laid 
down  is  of  injurious  import.  We  think  that  principles  of  com- 
mercial law,  long  established  and  maintained  by  a  consistent 
course  of  decision  in  the  other  states,  should  not  be  disturbed ;  that 
the  tendency  of  such  disturbance,  in  any  instance,  is  to  confusion 
and  uncertainty,  aiid  gives  rise  to  perplexing  litigation,  and  doubts 
and  uneasiness  in  the  public  mind.  Almost  any  general  rule  govern- 
ing commercial  transactions,  if  it  have  been  long  and  consistently 
upheld  as  a  part  of  the  general  system,  is  better  than  a  rule  super- 
seding it,  though  the  latter  were  much  better  as  an  original  propo- 
sition. Men  knowing  how  the  law  has  been  generally  received  and 
repeatedly  adjudged,  govern  themsches  and  are  ad\ised  by  their 
counsel  accordingly;  but  if  Courts  establish  new  rules  whenever 
they  are  dissatisfied  with  the  reasons  upon  which  the  old  ones  rest, 
the  standards  of  commercial  transactions  would  be  destroyed,  and 
commercial  business  regulated  by  a  mere  guess  at  what  the  opin- 
ion of  judges  for  the  time  might  be,  and  not  by  a  knowledge  of 
what  the  doctrines  of  recognized  works  of  authority  and  the  prece- 
dents of  the  Courts  are.    The  commercial  law  has  a  system  of  its 


JUDICIAL  DECISIONS  235 

own,  built  up  by  centuries  and  the  wisdom  of  learned  jurists  all 
over  the  world.  It  is  not  local,  but  applicable  to  all  the  states,  with 
few  modifications;  and  California,  eminently  commercial  in  its 
character,  and  in  close  commercial  connection  with  the  other  states, 
finds  her  interests  and  safety  in  adhering  to  the  well-settled  general 
rules  which  prevail  in  those  states  as  the  laws  of  trade.  We  repeat, 
the  stability  and  certainty  of  these  rules  are  of  more  importance 
than  any  fancied  benefits  which  might  accrue  from  any  innova- 
tion upon  the  system.  Innovation  begets  innovation,  and  we  can 
not  always  see  with  clearness  what  is  to  be  the  consequence  of  the 
new  rule  established.  This  case  itself  is  a  good  illustration;  for, 
if  the  doctrine  be  carried  to  its  logical  consequences,  and  when- 
ever it  appears  on  the  face  of  a  security  for  money,  a  party  is  a 
surety,  he  is  entitled  to  be  held  as  a  guarantor,  what  becomes  of 
undertakings,  acceptances  for  accommodation,  etc.?  For,  in  the 
latter  cases,  why  might  not  parol  evidence  be  admitted  to  show 
that  the  party  was  only  accommodation  acceptor,  in  a  contest 
between  the  original  parties,  as  to  show  the  same  fact,  as  is  fre- 
quently done,  when  suit  is  brought  to  recover  money  of  the  prin- 
cipal which  the  acceptor  has  paid  on  the  acceptance?  And  so, 
where  the  party  does  not  sign  as  surety,  but  really  is  such? 

The  doctrine  of  stare  decisis,  seriously  invoked  by  the  respond- 
ent's counsel,  can  have  no  effect;  or,  if  any,  only  the  effect  to  induce 
us  the  more  readily  to  return  to  a  principle  recognized,  we  believe, 
for  many  years  everywhere  else  in  the  commercial  world.  The  con- 
servati\"e  doctrine  of  stare  decisis  was  never  designed  to  protect 
such  an  innovation. 

Judgment  reversed,  and  cause  remanded. 

Lindsay  v.  Lindsay,  Supreme  Court  of  Indiana,  1874  (47 
Ind.  283). 

Osborn,  J.:  We  are  requested  to  grant  a  rehearing  in  this  case, 
that  the  cases  of  Leard  v.  Leard,  30  Ind.  171,  Nebeker  v.  Rhoads, 
30  Ind.  330,  and  DeMoss  v.  Newton,  31  Ind.  219,  may  be  recon- 
sidered and  overruled. 

Langdon  v.  Applegate,  5  Ind.  327,  was  decided  at  the  November 
term,  1854.  It  was  followed  and  adhered  to  by  many  decisions, 
and,  without  legislation,  rights  of  property  would  have  been  dis- 
turbed by  overruling  it.  The  rule  established  by  those  cases  was 
regarded  as  fixed  and  settled,  and  so  continued  until  the  decision 
in  the  case  of  The  Greencastle  etc.,  Turnpike  Co.  v.  The  State,  ex  rel. 


236  SOURCES  AND  FORMS  OF  LAW 

Malot,  28  Ind.  382,  at  the  November  term,  1867,  when  the  rule 
\vas  changed,  and  Langdon  v.  Applegate,  and  all  the  cases  follow- 
ing it  were  overruled.  It  is  quite  likely  that  the  legislature  had 
knowledge  before  that  opinion  was  delivered,  that  Laugdon  v. 
Applegate  would  be  overruled,  and  for  the  purpose  of  a\erting  the 
consequences,  which  would  otherwise  result  from  such  a  ruling, 
passed  the  act  of  March  9th,  1867.  The  object  of  the  legislature 
clearly  appears  on  the  face  of  the  act.  The  constitutionality  of  that 
act  was  deliberately  sustained  in  Leard  v.Leard,  30  Ind.  171,  which 
was  followed  by  Nebeker  v.  Rhoads,  30  Ind.  330,  and  DeMoss  v. 
Newton,  31  Ind.  219.  It  was  cited  and  recognized  as  authority  in 
Pierce  v.  Pierce,  46  Ind,  86. 

If  we  doubted  the  correctness  of  the  decisions  cited,  we  should 
be  unwilling  to  overrule  them.  They  have  become  a  rule  of  prop- 
erty in  this  state,  and  to  overrule  them  would  disturb  titles  to 
real  estate,  acquired  by  purchase  on  the  faith  of,  and  in  reliance 
upon,  the  rule  thus  established.  We  should  be  unwilling  to  make  a 
decision  involving  such  consequences,  except  for  very  convincing 
reasons.  Blackstone  lays  it  down  as  an  established  rule,  to  abide 
by  former  precedents,  when  the  same  point  comes  again  into  con- 
troversy, unless  flatly  absurd.     1  Bl.  Com.  70,  71. 

Public  confidence  in  the  decisions  of  courts  rests  in  a  great  meas- 
ure in  their  adherence  to  decided  cases.  Chancellor  Kent,  in  his 
Commentaries,  1  Kent,  476,  says: 

"The  community  have  a  right  to  regard  it"  (a  decision  of  the 
court)  "as  a  just  declaration  or  exposition  of  the  law,  and  to  regu- 
late their  actions  and  contracts  by  it.  .  .  . 

"If  judicial  decisions  were  to  be  lightly  disregarded,  we  should 
disturb  and  unsettle  the  great  landmarks  of  property.  When  a 
rule  has  been  once  deliberately  adopted  and  declared,  it  ought  not 
to  be  disturbed,  unless  by  a  court  of  appeal  or  review,  and  never 
by  the  same  court,  except  for  \ery  cogent  reasons,  and  upon  a 
clear  manifestation  of  error;  and  if  the  practice  were  otherwise, 
it  would  be  leaving  us  in  a  state  of  perplexing  uncertainty  as  to 
the  law." 

To  the  same  effect  are  Bellows  v.  Parsons,  13  N.  H.  256;  Taylor  v. 
French,  19  Vt.  49;  Boon  \. Bowers,  30  Miss.  240;  Emerson  v.  Atwater, 
7  Mich.  12;  Goodell  \.  Jackson,  20  Johns.  693,  722;  Day  v.  Munson, 
14  Ohio  St.  488;  Loeb  v.  Mathis,  37  Ind.  306,  312;  Harrow  v.  Myers, 
29  Ind.  469;  Carver  v.  Lonthain,  38  Ind.  530,  538;  Tinder  v.  The 
Duck  Pond  Ditching  Association,  38  Ind.  555;  Stanford  v.  Stanford, 


JUDICIAL  DECISIONS  237 

42  Ind.  485,  489;  Grubbs  v.  The  State,  24  Ind.  295,  and  numerous 
other  cases. 

In  the  case  last  cited,  it  is  said  on  page  296:  "This  principle 
has  so  often  received  the  sanction  of  appellate  courts,  that  it  has 
become  a  maxim  for  their  guidance,  and  it  is  especially  important 
that  it  should  not  be  forgotten  here,  where  the  judges  hold  for 
short  terms,  and  where,  unfortunately,  the  entire  court  may  be 
changed  at  once." 

We  might  not  be  willing  to  go  to  the  extent  of  some  of  the  authori- 
ties cited.  We  do  mean  to  hold,  however,  that  when  a  court  of 
appeals  of  the  last  resort  has,  by  its  decisions,  established  a  rule 
of  property  under  which  rights  have  been  acquired  as  in  this  case, 
an  adherence  to  such  decisions  by  the  same  court  becomes  a  duty, 
except  for  the  most  convincing  and  overwhelming  reasons. 

Malan  v.  Simpson,  Supreme  Court  of  New  York,  1861  (20 
How.  Pr.  488). 

Barnard,  Justice.:  The  question  presented  for  consideration  is, 
whether  a  term  fee  of  ten  dollars  can  be  taxed  for  every  term  that 
a  motion  for  a  new  trial  of  a  case  is  on  the  special  term  calendar 
and  not  necessarily  reached  or  postponed. 

In  the  case  of  the  Mechanics'  Banking  Association  (10  How. 
400)  the  general  term  of  the  superior  court  decided  the  question 
in  the  affirmative,  and  even  went  to  the  length  of  holding  that  a 
trial  fee  was  taxable. 

In  the  case  of  Moore  agt.  Cockroft,  9  How.  479,  the  general 
term  of  the  supreme  court  (second  district)  also  decided  the  ques- 
tion in  the  affirmative,  but  held  that  a  trial  fee  could  not  be  taxed. 
These  tWo  cases  agree  in  holding  that  term  fees  are  taxable.  There 
are,  in  addition,  numerous  special  term  decisions  holding  the  same 
doctrine.  It  is  insisted  on  the  part  of  the  defendants'  counsel,  that 
the  case  of  Jackett  agt.  Jiidd,  (18  How.  388)  has  overruled  all  pre- 
vious decisions  on  this  question,  including  the  above  two  general 
term  decisions.  That  case,  it  is  true,  is  a  decision  directly  adverse 
to  the  taxation  of  the  term  fees  in  question.  It  is,  however,  a 
mistake  to  suppose  that  the  last  decision  on  the  point  overruled  all 
prior  decisions. 

A  special  term  decision  cannot  even  overrule  a  prior  special 
term  decision,  much  less  a  general  term  decision.  When  there 
are  several  conflicting  special  term  decisions,  the  point  is  left  in 
doubt;   but  the  moment  a  point  is  decided  by  a  general  term,  the 


238  SOURCES  AND  FORMS  OF  LAW 

doubt  is  remo\'ed,  until  a  subsequent  conflicting  decision  of  another 
general  term  brings  it  back  again.  As  the  judiciary  is  at  present 
formed,  all  the  judges  are  co-ordinate  in  power,  arid  the  decision  of 
one  single  judge  in  one  district  in  no  way  binds  another  in  any  of 
the  other  districts  (excepting  in  adjudicating  on  t^e  same  case)  so 
likewise  the  general  terms  are  all  co-ordinate  and  the  decision  of  one 
general  term,  in  one  district,  is  not  binding  on  another  general 
term  in  any  of  the  other  districts,  with  the  single  exception  above 
mentioned.  The  decision  of  a  general  term,  however,  is  binding 
on  all  the  single  judges,  and  all  special  terms,  until  some  other 
general  term  makes  a  conflicting  decision,  when  the  question  is,  in 
truth,  left  undecided  by  the  superior  tribunal. 

It  also  results  that  a  decision  of  the  general  term  of  one  of  the 
judicial  districts,  will  be  binding  authority  (although  an  opposite 
decision  may  be  made  by  the  general  term  in  each  of  the  other 
districts)  in  that  district,  until  the  court  of  appeals  overrule  it,  or 
the  same  general  term  by  explanation  in  some  subsequent  cause 
in  efTect  overrules  it. 

It  therefore  follows,  that  where  there  are  conflicting  decisions 
on  a  point  by  the  general  term  in  two  districts,  the  law  on  that 
point  will  be  one  way  in  one  of  those  two  districts,  and  directly 
the  opposite  in  the  other;  whilst  in  the  rest  of  the  state,  it  would 
be  left  to  the  decision  of  the  particular  judge  before  whom  the 
question  might  arise. 

Consequently,  the  question  presented  in  this  case  having  been 
directly  adjudicated  upon,  and  decided  in  the  affirmative  by  a  gen- 
eral term  of  the  supreme  court  held  in  the  second  district,  and  no 
general  term  having  made  any  conflicting  decision,  the  decision  of 
this  case  must  follow  the  case  of  Moore  agt.  Cockrofl  (9  How. 
479). 

The  above  remarks  as  to  the  effect  of  decisions,  will,  of  course, 
be  understood  as  referring  to  their  obligatory  force;  all  judges 
and  courts  will  at  all  times  pay  due  respect  and  attentively  examine 
any  decisions  that  may  have  been  made  by  their  brethren  or  other 
courts,  and  give  to  them  such  weight  as  they  are  justly  entitled 
to.     Motion  denied  with  costs. 

To  understand  this  opinion,  it  must  be  remembered  that  at  that  time  the 
"general  term"  of  the  Supreme  Court  in  each  district  was  a  reviewing  court, 
having  appellate  jurisdiction  over  the  orders  and  judgments  of  the  "special 
term,"  which  was  the  tribunal  of  original  jurisdiction. 


JUDICIAL  DECISIONS  239 

Wells  v.  Oregon  R.  &  N.  Co.,  United  States  Circuit  Court, 
District  of  Oregon,  1883  (15  Fed.  Rep.  561). 

Deady,  J.:  Substantially  the  same  conclusion  had  been  reached 
by  several  other  judges  in  the  United  States  circuit  courts  in  the 
same  and  similar  cases  reported  in  2  Fed.  Rep.  465;  3  Fed.  Rep. 
593;  Id.  11^;  4  Fed.  Rep.  481;  6  Fed.  Rep.  426;  8  Fed.  Rep.  799. 

The  only  case  cited  from  the  decisions  of  the  federal  courts  to 
the  contrary  of  these  is  Chamblos  v.  Pa.,  etc.,  Ry.  Co.  4  Brewst. 
563,  in  which  a  preliminary  injunction  was  refused  by  Judge  Mc- 
Kennan  in  a  similar  case;  and  also  the  case  of  New  England  Exp. 
Co.  V.  Maine,  etc.,  Ry.  Co.  57  Me.  194,  and  Sergeant  v.  Boston, 
etc.  Ry.  Co.  115  Mass.  416,  in  which  the  right  of  an  express  com- 
pany to  what  are  known  as  express  facilities  on  the  defendants' 
roads  was  denied.  But  the  very  decided  weight  and  number  of 
these  authorities  recognize  the  existence  of  the  express  business 
and  the  right  of  those  engaged  in  it  to  have  the  proper  facilities 
therefor  allowed  them  by  the  defendants,  and  to  secure  the  same 
by  injunction  in  case  they  are  refused.  Until  this  question  is 
settled  by  the  supreme  court,  these  deliberate  decisions  of  co- 
ordinate tribunals,  like  the  circuit  courts,  ought,  except  in  an  extreme 
case,  to  furnish  a  guide  for  the  decision  of  this  court.  This  is  the 
rule  that  has  been  followed  by  justices  of  the  supreme  court  on  the 
circuit  (Washburn  v.  Gould,  3  Story,  133;  Brooks  v.  Bicknell,  3 
McLean,  250;  American,  etc.,  Co.  v.  Fiber,  etc.,  Co.,  3  Fisher,  363) 
and  in  Goodyear,  etc.,  Co.  v.  Milles,  7  O.  G.  40,  Judge  Emmons 
examines  the  question  at  some  length,  and  concludes  that  "if  one 
system  of  co-ordinate  courts  more  than  another  calls  for  the  appli- 
cation of  these  general  principles,  it  is  that  of  the  circuit  courts  of 
the  United  States.  .  .  .  Although  divided  in  jurisdiction,  geo- 
graphically, they  constitute  a  single  system,  and  when  one  court 
has  fully  considered  and  deliberately  decided  a  question,  every 
suggestion  of  propriety  and  fit  public  action  demand  that  it  should 
be  followed  until  modified  by  the  appellate  court." 

In  Edison  Electric  Light  Co.  w.Bloomingdale,  65  Fed.  Rep.  212  (1894),  Lacombe 
J.,  says: 

It  is,  of  course,  the  duty  of  the  several  circuit  courts  in  the  second  circuit, 
comity  to  the  contrary  notwithstanding,  to  follow  the  decisions  of  the  court  of 
appeals  of  that  circuit  rather  than  those  of  a  circuit  court  in  some  other  circuit. 

Burt  v.  Powis,  Supreme  Court  of  New  York,  1858  (16  How. 
Pr.  289). 
By  the  court —  E.  Darwin  Smith,  Justice.     The  questions  aris- 
ing upon  this  appeal  are  precisely  the  same  presented  to  the  court 


240  SOURCES  AND  FORMS  OF  LAW 

in  the  case  of  Walker  agt.  Crane  (17  Barb.  119).  In  that  case  the 
construction,  force  and  vaUdity  of  the  act  of  March  16,  1852, 
entitled,  "An  act  to  faciUtate  the  dissolution  of  manufacturing 
corporations  in  the  county  of  Herkimer,  and  to  secure  the  pay- 
ment of  their  debts  without  preferences,"  was  elaborately  discussed 
and  fully  considered. 

The  able  opinion  of  Judge  Gridley  in  the  case,  appears  to  have 
been  concurred  in  by  the  four  judges  of  the  fifth  district,  all  present 
at  the  general  term.  By  chapter  64  of  acts  of  the  sessions  of  1855, 
page  65,  the  provisions  of  the  aforesaid  act  are  applied  to  the  Seneca 
County  Woolen  Mills,  which  brings  this  case  necessarily  within  the 
decision  in  the  case  of  Walker  agt.  Crane,  and  also  within  the  case 
of  The  Herkimer  Coimty  Bank  sigt.  Fur  man  (17  Barb.  116).  Those 
decisions,  both  pronounced  at  the  same  general  term,  are  authori- 
tative decisions  of  this  court  upon  the  questions  presented,  and 
binding  as  such  upon  the  judges  of  this  court  and  upon  referees, 
and  all  other  subordinate  tribunals,  until  overruled  or  reversed. 
The  report  of  the  referee  in  this  action  being  in  distinct  conflict 
with  such  decision,  the  judgment  entered  thereupon  must,  of  course, 
be  reversed. 

The  referee  had  no  right  to  disregard  the  decision  of  the  court 
upon  the  express  point  before  him.  If  there  was  error  in  that 
decision,  the  court  itself  at  any  general  term  might  reconsider  and 
overrule  the  same.  Otherwise,  and  until  that  had  been  done,  it 
was  the  law  of  this  court  binding  as  authority  in  all  places,  until 
reversed  by  the  court  of  appeals.  The  fact  that  the  referee  in  this 
case  supposed  himself  at  liberty  avowedly  to  render  a  judgment  in 
open  conflict  with  a  decision  of  the  court  at  general  term,  and  that 
learned  counsel  with  the  abo\'e  cases  before  them,  should  have  called 
upon  the  referee  to  do  so,  seems  to  imply  the  prevalence  to  some 
extent  of  a  fundamental  error  in  respect  to  this  court,  in  the  assump- 
tion that  the  law  is,  or  may  be  dilTerent  in  the  different  districts 
of  the  state.  Perhaps  some  conflict  of  decision  may  ha\e  given 
rise  to  such  an  impression,  and  induced  counsel  to  suppose 
that  it  was  admissible  to  experiment  upon  the  possibility  of 
obtaining  a  difi'erent  decision  in  one  district  from  the  decision 
of  another.  But  I  do  not  think  this  court  in  any  of  its  branches 
deserves  the  reproach  of  countenancing  any  such  experiments. 
Upon  questions  of '  law,  the  conflict  of  opinions  between  the 
decisions  of  the  judges  in  the  several  districts  of  the  state,  is 
quite  infrequent. 


JUDICIAL  DECISIONS  241 

Parker  v.  Pomeroy,  Supreme  Court  of  Wisconsin,  1853 
(2  Wis.  112). 

By  the  Court,  Crawford,  J.  The  important  question  presented 
by  the  record  in  this  case,  and  the  only  one  upon  which  an  error 
might  be  predicated,  is  whether  a  defendant  in  replevin,  in  whose 
favor  a  judgment  for  the  value  of  the  goods  replevied,  and  damages 
for  detention,  with  costs,  has  been  rendered  in  the  Circuit  Court,  is 
entitled  to  a  capias  ad  satisfaciendum  against  the  plaintiff  to  enforce 
his  judgment. 

We  regret  that  this  question  is  not  open  in  the  present  case;  and 
so  far  as  this  case  is  concerned,  we  cannot  discuss  it.  At  the 
December  Term,  1851,  of  the  Supreme  Court,  it  was  determined 
that  the  pleas  of  justification  interposed  by  the  defendants  were 
bad,  because  a  ca.  sa.  could  not  issue  on  a  judgment  in  favor  of  the 
defendant  in  replevin,  as  above  stated.  The  case  w^as  remanded, 
and  after  a  trial  in  the  Circuit  Court,  it  is  now  before  us  on  writ 
of  error. 

However  we  might  differ  with  the  conclusion  of  the  Supreme 
Court,  as  contained  in  the  opinion  given,  still  it  must  be  esteemed, 
for  all  the  purposes  of  the  present  case,  res  adjudicata.  {Vide  The 
Washington  Bridge  Co.  v.  Stewart  and  others,  3  Howard,  413.) 

As  w'e  discover  no  other  error  in  the  case,  we  are,  with  reluctance, 
compelled  to  affirm  the  judgment  of  the  Circuit  Court. 

In  Caldwell  v.  Gale,  11  Mich.  77  (1862),  the  court  says: 

The  first  proposition  is  sustained  by  adjudged  cases  both  in  England  and  in  this 
country.  It  appears  to  have  had  its  origin  as  a  rule  of  law  in  Penruddock's  Case, 
5  Coke,  100.  It  has  antiquity  on  its  side,  and  is,  therefore,  entitled  to  all  the  con- 
sideration and  weight  that  time  can  give  to  an  adjudication,  as  precedent  for  other 
courts  to  follow.  We  are  not,  however,  aware  that  the  question  has  ever  before 
arisen  in  our  courts,  and  we  do  not  feel  ourselves  bound  to  follow,  as  precedents, 
adjudications  outside  of  our  own  State  —  save  adjudications  in  the  Federal 
Courts  on  questions  arising  under  the  Constitution  and  laws  of  the  Federal 
Government  —  any  further  than  they  appear  to  us  to  be  warranted  by  the  funda- 
mental principles  of  the  common  law. 

Lebanon  Bank  v.  Mangan,  Supreme  Court  of  Penns\x- 
VANIA,  1857  (27  Pa.  St.  452). 
Lewis,  C.  J.:  The  decision  of  the  Supreme  Court  of  the  United 
States  in  Miller  v,  Austin,  13  How.  218,  is  certainly  entitled  to  very 
great  respect,  on  account  of  the  learning  and  ability  of  the  judges 
who  administer  the  law  in  that  court.  But  this  question  does  not 
arise  upon  the  construction  of  the  constitution  or  laws  of  the 


242  SOURCES  AND  FORMS  OF  LAW 

United  States ;  the  case  before  that  court  was  a  certificate  of  deposit 
issued  by  a  bank  in  Mississippi,  and  endorsed  in  Ohio.  The  action 
was  brought  in  the  hitter  state,  not  upon  the  certificate,  but  upon 
the  endorsement.  Every  endorsement  is  treated  as  a  new  and  sub- 
stantive contract,  and  is  goxerned  by  the  law  of  the  place  where  the 
endorsement  is  made:  Slociim  v.  Poviroy,  6  Cranch.  221;  Story 
Confl.  Laws,  314.  The  Federal  tribunal  had,  therefore,  no  other 
duty  to  perform  than  to  ascertain  what  was  the  law  of  Ohio;  and 
its  decision  is  nothing  more  than  the  expression  of  its  opinion  that, 
under  the  law  of  Ohio,  the  endorser  was  liable.  Conceding  this  to 
be  a  correct  exposition  of  the  law  of  Ohio,  it  furnishes  no  reason 
whatever  for  a  change  in  the  settled  laws  and  usages  of  this  state. 
If  each  state  is  constantly  changing  its  rules  of  decision  for  the 
purpose  of  conforming  to  those  of  its  sister  states,  it  might  happen 
that  by  the  time  we  had  accommodated  ourselves  to  the  law  of 
Ohio,  that  state,  influenced  by  the  like  comity,  might  have  adopted 
our  rule,  and  thus  the  law  would  be  rendered  uncertain  in  both 
states.  But  it  is  remarkable  that  a  decision  of  the  Supreme  Court 
of  Ohio,  in  exact  conformity  with  the  Pennsylvania  decisions,  was 
cited  in  the  argument,  and  the  learned  judge  who  delivered  the 
opinion  of  the  Federal  Court  did  not  undertake  to  show  that  the 
citation  was  erroneous,  or  that  the  decision  had  been  overruled 
by  the  proper  tribunal  of  Ohio.  It  is,  therefore,  by  no  means  cer- 
tain that  the  case  of  Miller  v.  Austin  is  even  a  correct  declaration 
of  the  law  of  Ohio.  It  is  very  certain,  however,  that  it  is  no  author- 
ity on  this  question,  in  opposition  to  the  decisions  of  the  Supreme 
Court  of  Pennsylvania. 

The  same  remark  may  be  made  in  relation  to  the  decisions  of 
other  states  on  this  question.  When  a  principle  of  Pennsylvania 
law  has  been  settled  by  the  Supreme  Court  of  the  state,  it  is  not  to 
be  changed  in  order  to  conform  to  the  laws  of  other  states.  Judg- 
ment aftirmed. 

Shelton  v.  Hamilton,  Supreme  Court  of  Mississippi,  1852 
(23  Miss.  496). 
Yerger,  J.:  The  case  of  Erzvin  v.  Dundas,  4  How.  58,  decided 
by  the  Supreme  Court  of  the  United  States,  has  been  pressed  upon 
our  consideration.  That  case  went  up  from  Alabama,  and  the 
Supreme  Court  held  that  a  sale  of  lands  made  in  Alabama,  by  virtue 
of  an  execution  tested  after  the  death  of  the  defendant  without 
revivor,  was  absolutely  void,  and  not  merely  voidable.     While  we 


JUDICIAL  DECISIONS  243 

entertain  a  proper  respect  for  the  opinions  of  the  Supreme  Court, 
and  are  wilHng  to  yield  to  them  the  deference  which  is  due  to  so 
distinguished  a  tribunal,  yet  when  its  decisions  come  in  conflict 
with  those  of  this  court,  in  relation  to  questions  over  which  the 
jurisdiction  of  this  court  is  ample  and  its  decisions  final,  we  feel 
bound  to  adhere  to  our  own  decisions.  Any  other  rule  would  sub- 
ject the  opinions  of  this  court  to  a  degree  of  fluctuation  and  change 
greatly  to  be  deplored.  Retrospective  legislation  has  always  been 
deemed  unjust  and  oppressive.  Whenever  courts  of  justice  alter 
or  change  the  rules  of  law  they  have  once  established,  and  on  the 
faith  of  which  contracts  have  been  made  or  rights  acquired,  many 
of  the  most  injurious  effects  of  retrospective  legislation  will  result 
from  such  action.  Entertaining  this  opinion,  whatever  views  we 
might  have  been  inclined  to  take  of  the  question  presented  in  the 
charge  of  the  circuit  judge,  if  it  had  been  one  of  the  first  impression, 
we  shall  adhere  to  the  rule  laid  down  by  this  court  in  the  case  of 
Smith  v.  Winston,  before  referred  to. 

Sim's  Case,  Supreme  Judicl\l  Court  of  Massachusetts, 
1851  (7  Cush.  285). 

The  question  was  as  to  the  constitutionality  of  an  act  of  Con- 
gress of  1850.  The  act  was  substantially  the  same  as  an  act  of  Con- 
gress of  1793  which  had  been  held  constitutional  by  the  federal 
courts. 

Shaw,  C.  J.:  Since  the  argument  in  court,  this  morning,  I  am 
reminded  by  one  of  the  counsel  for  the  petitioner,  that  the  law  in 
question  ought  to  be  regarded  as  unconstitutional,  because  it  makes 
no  provision  for  a  trial  by  jury.  We  think  that  this  cannot  vary 
the  result.  The  law  of  1850  stands,  in  this  respect,  precisely  on 
the  same  ground  with  that  of  1793,  and  the  same  grounds  of  argu- 
ment which  tend  to  show  the  unconstitutionality  of  one  apply  with 
equal  force  to  the  other;  and  the  same  answer  must  be  made  to  them. 

The  principle  of  adhering  to  judicial  precedent,  especially  that  of 
the  supreme  court  of  the  United  States,  in  a  case  depending  upon 
the  constitution  and  laws  of  the  United  States,  and  thus  placed 
within  their  special  and  final  jurisdiction,  is  absolutely  necessary  to 
the  peace,  union  and  harmonious  action  of  the  state  and  general 
governments.  The  preservation  of  both,  with  their  full  and  entire 
powers,  each  in  its  proper  sphere,  was  regarded  by  the  framers  of 
the  constitution,  and  has  ever  since  been  regarded,  as  essential  to 
the  peace,  order  and  prosperity  of  all  the  United  States. 


244  SOURCES  AND  FORMS  OF  LAW 

If  this  were  a  new  question,  now  for  the  first  time  presented,  we 
should  desire  to  pause  and  take  time  for  consideration.  But  thougli 
this  act,  the  construction  of  which  is  now  drawn  in  question,  is 
recent,  and  this  point,  in  the  form  in  which  it  is  now  stated,  is 
new,  yet  the  solution  of  the  question  depends  upon  reasons  and 
judicial  decisions,  upon  legal  principles  and  a  long  course  of  practice, 
which  are  familiar,  and  which  have  often  been  the  subject  of  dis- 
cussion and  deliberation. 

Considering,  therefore,  the  nature  of  the  subject,  the  urgent 
necessity  for  a  speedy  and  prompt  decision,  we  have  not  thought 
it  expedient  to  delay  the  judgment.  I  have,  therefore,  to  state, 
in  behalf  of  the  court,  under  the  weighty  responsibility  which 
rests  upon  us,  and  as  the  unanimous  opinion  of  the  court,  that 
the  writ  of  habeas  corpus  prayed  for  cannot  be  granted.  Writ 
refused. 

Smoot  v.  Lafferty,  Supreme  Court  of  Illinois,  1845  (2  Gilm. 
383). 

Caton,  J.:  The  declaration  in  this  cause  states  that  the  defend- 
ant below  was  sheriff  of  the  county  of  Gallatin,  and  as  such  sheriff, 
had  in  his  hands  a  certain  execution  and  fee  bills  against  the  plain- 
tiff below,  by  virtue  of  which  he  levied  upon  a  certain  ferry  boat, 
the  property  of  the  said  plaintiff,  and  sold  it  without  having  the 
same  appraised  by  three  disinterested  householders,  as  required 
by  the  provisions  of  the  act  of  January  6th,  1843,  entitled,  "An 
act  regulating  the  sales  of  property  on  judgments  and  executions." 
The  declaration  contains  sufficient  averments  to  show  that  the 
case  was  embraced  within  the  provisions  of  that  act.  To  this 
declaration  the  defendant  filed  a  demurrer,  which  was  overruled  by 
the  court  and  judgment  given  for  tiie  plaintiff,  which  is  now  assigned 
for  error. 

The  only  question  presented  for  our  consideration  is  the  consti- 
tutionality of  that  law.  The  Supreme  Court  of  the  United  States, 
in  the  case  of  McCracken  v.  Hayward,  decided  at  the  January  term, 
1844,  have  distinctly  decided  that  the  act  of  1841  is  an  express  vio- 
lation of  the  constitution  of  the  United  States  and  void.  The  pro- 
visions of  the  act  first  mentioned  are  substantially  the  same  as 
those  of  this  act.  As  by  the  constitution  of  the  United  States  that 
court  has  ultimate  exclusive  jurisdiction  of  that  cjuestion,  we  are 
bound   by  its  decision. 

The  judgment  of  the  circuit  court  is  reversed  with  costs. 


JUDICIAL  DECISIONS  245 

Hicks  v,  Hotchkiss,  Court  of  Chancery  of  New  York,  1823 
(7  Johns.   Ch.  297). 

Kent,  Chancellor:  The  decisions  of  the  Supreme  Court  of  the 
United  States  upon  questions  arising  upon  the  construction  of  the 
powers  and  authority  of  the  Constitution  must  be  definitive  and 
binding  upon  all  the  tribunals  of  the  Union,  because  the  Consti- 
tution has  made  their  judgments  and  decrees  final  and  without 
appeal.  Every  decision  by  a  court  in  the  last  resort,  in  a  case 
within  its  undoubted  jurisdiction,  must,  from  the  necessity  of  the 
case,  be  absolutely  binding.  The  proposition  that  the  state  courts 
are  equally  supreme,  independent  and  absolute  in  the  considera- 
tion and  decision  of  such  national  questions  strikes  me  as  untenable. 
It  would  lead  to  the  subversion  of  all  order  and  subordination. 
There  must  be  a  paramount  power  somewhere  in  the  organization 
of  every  political  institution,  or  there  is  no  government.  The 
Supreme  Court  of  the  United  States,  on  questions  within  its  cog- 
nizance, is  that  power;  and  if  the  state  courts  were  to  undertake 
to  disobey  or  elude  its  decisions,  the  consequence  would  be  discord 
and  confusion,  or  a  dissolution  of  the  national  compact. 

I  should  have  deemed  it  my  duty,  therefore,  to  have  maintained 
this  doctrine,  even  if  I  had  considered  the  application  of  a  pro- 
hibition in  the  Constitution  to  the  discharge  under  the  act  of  1811, 
to  have  been  a  mistaken  application. 

WiLKiNS  v.  Philips,  Supreme  Court  of  Ohio,  1827  (3  Ohio,  49). 
By  the  Court:  The  case  of  Marstiller  and  others  v.  McLean,  7 
Wheat.  156,  was  decided  upon  the  authority  of  the  case  of  Perry 
and  others  v.  Jackson  and  others,  4  Term,  516.  In  this  latter  case, 
Lord  Kenyon  asserts  that  it  is  the  first  time  the  question  had  been 
brought  up  for  decision  whether,  where  the  saving  clause  of  the 
statute  of  limitations  protected  only  a  part  of  those  joined  in  the 
action,  all  the  plaintiffs  could  claim  its  protection.  It  decided  against 
the  protection,  but  upon  grounds  by  no  means  satisfactory  to  us. 
The  case  was  one  of  partnership,  which,  we  think,  was  sufficient 
of  itself,  to  have  warranted  the  decision  made.  This  is  in  part 
relied  upon,  and  the  decision  is,  in  part,  put  upon  the  ground  of  the 
grammatical  construction  of  the  statute.  The  Supreme  Court  of 
the  United  States  ground  themselves  upon  this  authority.  Highly 
as  we  respect  the  opinions  of  this  tribunal,  we  can  not  adopt  them 
in  construction  of  our  own  statutes,  where  they  are  at  variance  with 
our  own  judgments.     We  consider  the  reasoning  of  the  courts  of 


246  SOURCES  AND  FORMS  OF  LAW 

Connecticut  and  Kentucky,  cited  by  the  other  side,  as  more  con 
sonant  to  the  general  advancement  of  justice.  It  is  our  opinion, 
that,  if  any  one  of  the  parties  who  sue  a  writ  of  error  is  within  the 
proviso  that  takes  the  case  out  of  the  statute  of  Hmitations,  the  case 
is  saved  for  all  the  parties.  The  demurrer  to  the  replication  is 
overruled,  and  cause  remanded  for  further  proceedings. 

Cohens  v.  Virginia,  Supreme  Court  of  the  United  States, 
1821   (6  Wheat.  265). 

Marshall,  C.  J.:  The  counsel  for  the  defendant  in  error  urge, 
in  opposition  to  this  rule  of  construction,  some  dicta  of  the  court, 
in  the  case  of  Marbury  v.  Madison. 

It  is  a  maxim  not  to  be  disregarded,  that  general  expressions, 
in  every  opinion,  are  to  be  taken  in  connection  with  the  case  in 
which  those  expressions  are  used.  If  they  go  beyond  the  case,  they 
may  be  respected,  but  ought  not  to  control  the  judgment  in  a  sub- 
sequent suit  when  the  very  point  is  presented  for  decision.  The  rea- 
son of  this  maxim  is  obvious.  The  question  actually  before  the 
court  is  investigated  with  care  and  considered  in  its  full  extent. 
Other  principles  which  may  serve  to  illustrate  it,  are  considered  in 
their  relation  to  the  case  decided,  but  their  possible  bearing  on  all 
other  cases  is  seldom  completely  investigated. 

In  the  case  of  Marbury  v.  Madison,  the  single  question  before 
the  court,  so  far  as  that  case  can  be  applied  to  this,  was,  whether 
the  legislature  could  give  this  court  original  jurisdiction  in  a  case 
in  which  the  constitution  had  clearly  not  given  it,  and  in  which 
no  doubt  respecting  the  construction  of  the  article  could  possibly  be 
raised.  The  court  decided,  and  we  think  very  properly,  that  the 
legislature  could  not  give  original  jurisdiction  in  such  a  case.  But 
in  the  reasoning  of  the  court  in  support  of  this  decision,  some  ex- 
pressions are  used  which  go  far  beyond  it.  The  counsel  for  Mar- 
bury had  insisted  on  the  unlimited  discretion  of  the  legislature  in 
the  apportionment  of  the  judicial  power;  and  it  is  against  this  argu- 
ment that  the  reasoning  of  the  court  is  directed.  They  say  that, 
if  such  had  been  the  intention  of  the  article,  "it  would  certainly 
have  been  useless  to  proceed  farther  than  to  define  the  judicial 
power,  and  the  tribunals  in  which  it  should  be  vested."  The  court 
says,  that  such  a  construction  would  render  the  clause,  dividing  the 
juri.sdiction  of  the  court  into  original  and  appellate,  totally  useless; 
that  "affirmative  words  are  often,  in  their  operation,  negative  of 
other  objects  than  those  which  are  affirmed;   and,  in  this  case  (in 


JUDICIAL  DECISIONS  247 

the  case  of  Marbury  v.  Madison),  a  negative  or  exclusive  sense 
must  be  given  to  them,  or  they  have  no  operation  at  all."  "It 
cannot  be  presumed,"  adds  the  court,  "that  any  clause  in  the  Con- 
stitution is  intended  to  be  without  effect;  and,  therefore,  such  a 
construction  is  inadmissible,  unless  the  words  require  it." 

The  whole  reasoning  of  the  court  proceeds  upon  the  idea  that  the 
affirmative  words  of  the  clause  gi\'ing  one  sort  of  jurisdiction,  must 
imply  a  negative  of  any  other  sort  of  jurisdiction,  because  otherwise 
the  words  would  be  totally  inoperative,  and  this  reasoning  is  ad- 
vanced in  a  case  to  which  it  was  strictly  applicable.  If  in  that  case 
original  jurisdiction  could  ha\e  been  exercised,  the  clause  under 
consideration  would  have  been  entirely  useless.  Having  such  cases 
only  in  its  view,  the  court  lays  down  a  principle  which  is  generally 
correct,  in  terms  much  broader  than  the  decision,  and  not  only  much 
broader  than  the  reasoning  with  which  that  decision  is  supported, 
but  in  some  instances  contradictory  to  its  principle.  The  reasoning 
sustains  the  negati\e  operation  of  the  words  in  that  case,  because 
otherwise  the  clause  would  have  no  meaning  whatever,  and  because 
such  operation  was  necessary  to  give  effect  to  the  intention  of  the 
article.  The  effort  now  made  is,  to  apply  the  conclusion  to  which 
the  court  was  conducted  by  that  reasoning  in  the  particular  case,  to 
one  in  which  the  words  have  their  full  operation  when  understood 
affirmatively,  and  in  which  the  negative,  or  exclusive  sense,  is  to  be 
so  used  as  to  defeat  some  of  the  great  objects  of  the  article. 

To  this  construction  the  court  cannot  give  its  assent.  The  gen- 
eral expressions  in  the  case  of  Marbury  v.  Madison  must  be  under- 
stood with  the  limitations  which  are  given  to  them  in  this  opinion; 
limitations,  which  in  no  degree  affect  the  decision  in  that  case,  or 
the  tenor  of  its  reasoning. 

Florida  C.  R.  Co.  v.  Schutte,  Supreme  Court  of  the  United 
States,  1881  (103  U.  S.  118). 
Waite,  C.  J.:  As  to  the  first  question,  we  deem  it  sufficient  to 
say  that  the  Supreme  Court  of  Florida  has  distinctly  decided  that 
in  the  case  of  this  Company,  as  well  as  the  other,  the  statutory  au- 
thority was  complete.  The  point  was  directly  made  by  the  plead- 
ings and  as  directly  passed  on  by  the  court.  Although  the  bill  in 
the  case  was  finally  dismissed  because  it  was  not  proved  that  any  of 
the  state  bonds  had  been  sold,  the  decision  was  in  no  just  sense 
dictum.  It  cannot  be  said  that  a  case  is  not  authority  on  one  point 
because,  although  that  point  was  properly  presented  and  decided  in 


248  SOURCES  AND  FORMS  OF  LAW 

the  regular  course  of  the  consideration  of  the  cause,  something  else 
was  found  in  the  end  which  disposed  of  the  whole  matter.  Here 
the  precise  question  was  properly  presented,  fully  argued,  and  elab- 
orately considered  in  the  opinion.  The  decision  on  this  question 
was  as  much  part  of  the  judgment  of  the  court  as  was  that  on 
any  other  of  the  several  matters  on  which  the  case  as  a  whole 
depended. 

In  Cross  v.  Burke  146  U.  S.  82  (1892),  Fuller,  C.  J.,  says: 
It  was  to  this  act  that  Mr.  Justice  Miller  referred  in  Wales  v.  Whitney,  114 
U.  S.,  564,  565,  as  restoring  "the  appellate  jurisdiction  of  this  court  in  habeas 
corpus  cases  from  decisions  of  the  circuit  courts  and  that  this  necessarily  included 
jurisdiction  over  similar  judgments  of  the  Supreme  Court  of  the  District  of 
Columbia."  But  the  question  of  jurisdiction  does  not  appear  to  have  been  con- 
tested in  Wales  v.  Whitney,  and  where  this  is  so,  the  court  does  not  consider  itself 
bound  by  the  view  expressed. 

Trinity  County  v.  McCammon,  Supreme  Court   of   Cali- 
fornia, 1864  (25  Cal.  117). 
By  the  Court,  Shafter,  J.,  on  petition  for  modification  of  opinion: 
Since  the  decision  of  the  appeal  taken  in  this  action,  a  petition 
has  been  presented  on  the  part  of  the  appellant,  asking  not  for  a 
rehearing,  nor  for  any  modification  of  the  judgment,  but  for  a  inod- 
ification  of  the  opinion,  on  the  ground  that  the  opinion  is  to  some 
extent  obiter;    and  on  the  further  ground  that  the  Court  has  mis- 
apprehended the  contents  of  the  report  made  by  the  committee 
appointed    by   the    County    Judge   to   pass  on  the  value  of  the 
building  owned  by  Edgcomb,  and  which  he  proposed  to  sell  to  the 
county. 

In  so  far  as  the  ojjinion  passes  upon  any  question  not  necessary 
to  the  decision  of  the  appeal,  it  will  interpose  no  obstacle  to  a  re- 
investigation of  such  question  upon  its  merits  in  any  case  that  may 
hereafter  come  to  this  Court  in  which  the  point  shall  be  directly 
presented.  In  so  far  as  the  misapprehension  of  the  contents  of  the 
committee's  report  is  concerned,  the  document  as  such,  was  not  in 
the  transcript,  and  we  were  therefore  justified  in  assuming  that  it 
had  no  contents,  aliunde  the  contents  set  out  in  the  proceedings. 
Any  case  coming  here  hereafter  showing  that  the  report  comjjre- 
hended  topics  other  than  those  to  which  the  present  record  confines 
it,  will  be  a  case,  to  that  extent,  diff"erent  from  the  present,  and  of 
course  one  to  which  the  opinion  in  this  case  cannot  be  considered 
as  having  any  just  application.     Petition  denied. 


JUDICIAL  DECISIONS  249 

Stow  v.  People,  Supreme  Court  of  Illinois,  1850  (25  111.  81). 

Mr.  Chief  Justice  Caton  delivered  the  opinion  of  the  court: 

The  first  question  we  propose  to  consider,  is  that  of  the  jurisdic- 
tion of  the  court  before  which  the  prisoner  was  convicted.  This 
question  we  shall  determine  solely  upon  the  construction  of  the 
proviso  of  the  first  section  of  the  fifth  article  of  the  Constitution, 
without  particular  reference  to  the  different  acts  of  the  legislature, 
by  which  it  is  supposed  that  the  court  has  been  deprived  of  jurisdic- 
tion. 

That  proviso  is  this  :  "Provided,  that  inferior  local  courts  of  civil 
and  criminal  jurisdiction  may  be  established,  by  the  general  assem- 
blies, in  the  cities  of  this  State,  but  such  courts  shall  have  a  uniform 
organization  and  jurisdiction  in  such  cities."  We  were  first  called 
upon  to  consider  this  provision  of  the  Constitution,  in  reference  to 
this  very  court,  in  the  case  of  Perry  v.  The  People,  14  111.  496.  The 
objection,  and  the  only  objection  then  raised  to  the  court,  was,  that 
the  legislature  had  established  one  court  in  one  city  of  the  State 
only;  whereas  it  was,  by  this  clause  of  the  Constitution,  required, 
when  it  attempted  to  exercise  the  power  here  conferred,  to  legislate 
for  all  the  cities  alike,  and  establish  the  same  court,  or  courts,  in 
each  of  the  cities  within  the  limits  of  the  State.  It  was  objected, 
and  only  objected,  as  this  had  not  been  done,  and  but  one  city  had 
been  provided  with  a  court,  that  it  was  not  authorized  by  the  Con- 
stitution. This,  we  say,  was  the  only  question  presented  by  the 
record,  and  the  only  one  the  court  was  called  upon  to  decide.  That 
was  decided  by  the  court,  and  it  was  held  that  the  legislature  might 
establish  courts  in  such  cities  alone,  as  the  public  exigencies  in  its 
judgment  might  require. 

It  is  true  that  the  court,  in  its  opinion,  went  beyond  the  case  be- 
fore it,  and,  in  anticipation  of  the  future,  made  ,an  admonitory 
remark,  which  contains  an  intimation,  that  all  the  courts  in  all  the 
cities,  which  should  be  established,  must  have  a  uniform  organiza- 
tion and  jurisdiction.  It  is  this:  "The  'uniformity  of  organiza- 
tion and  jurisdiction'  has  respect  to  the  courts  and  not  to  the  cities 
as  its  antecedent.  As  these  courts  may  be  extended,  care  will  be 
taken  to  introduce  into  other  cities  one  of  a  'uniform  character  of 
organization  and  jurisdiction';  as  the  power  is  restricted  and  con- 
fined to  such  character  as  shall  produce  uniformity  in  the  mode 
of  organization  and  extent  of  jurisdiction."  The  remark  was 
undoubtedly  true  and  pertinent,  that  the  uniformity  of  organization 
and  jurisdiction,  has  respect  to  the  courts  and  not  to  the  cities;  but 


250  SOURCES  AND  FORMS  OF  LAW 

it  was  not  necessary  to  say  how  far  that  uniformity  was  required 
to  extend.  It  was  sulihcient  that  the  unifonnity  enjoined  did  not 
refer  to  cities,  and  that  the  general  assembly  might  legislate  for  one 
city  and  not  for  another.     .     .     . 

HOLCOMB    V.    BONNELL,    SUPREME    CoURT    OF    MICHIGAN,    1875 

(32  Mich.  6). 

Graves,  C.  J.:  On  the  trial  before  a  jury  the  e\'idence  tended  to 
establish  a  right  in  Holcomb  to  recover,  but  the  defence  contended 
that  all  right  of  action  on  the  bond  was  excluded  on  the  ground 
that  the  plaintiff  had  never  got  into  actual  possession  under  the 
judgment,  and  cited  Delashman  v.  Berry,  21  Mich.,  516,  as  decisive 
on  the  subject;  and  the  circuit  judge,  taking  the  same  view  of  that 
case,  felt  constrained  to  yield  to  this  position  of  defendants,  and  he 
accordingly  instructed  the  jury  to  find  against  Holcomb. 

Without  questioning  in  the  least  the  correctness  of  the  decision 
itself  in  Delashman  v.  Berry,  we  do  not  fail  to  observe  that  the  lan- 
guage is  pretty  broad  and  open  to  an  application  much  more 
extended  than  was  designed,  unless  strictly  confined  to  the  state  of 
facts  there  shown.  It  is  hardly  necessary  to  obser\-e  that  the  lan- 
guage used  in  deciding  cases  can  rarely  be  separated  from  the 
specific  matters  contemplated  by  the  court,  without  leading  to  results 
completely  at  variance  with  the  principle  with  which  the  expres- 
sions were  meant  to  harmonize.  In  laying  down  propositions  which 
appear  correct  in  view  of  the  actual  case  as  shaped  by  the  record, 
it  is  not  generally  considered  needful  to  write  down  in  guarded 
terms  the  particular  limitations  of  the  propositions,  or  the  condi- 
tions which  would  not  be  suited  to  them.  It  is  supposed  they  will 
be  read  not  as  abstractions,  but  as  propositions  inseparably  bound 
up  with  the  particular  issue  and  matters  the  court  is  then  dealing 
with,  and  it  is  in  this  way  that  the  ol)ser\ations  in  the  case  men- 
tioned nuist  be  considered,  and  without  yielding  to  them  any  further 
than  the  needs  of  that  case  required.  Now,  in  Delashman  v.  Berry 
the  plaintiff  had  got  judgment  of  restitution  merely,  and  so  far  as 
appeared,  there  was  no  impediment  to  hinder  him  from  getting 
actual  possession  pursuant  to  the  judgment.  Nevertheless,  with- 
out presenting  any  reason  whatever  for  failing  to  get,  or  even  for 
omitting  all  effort  to  get  possession,  he  at  once  sued  on  the  bond, 
and  the  court  thought  he  did  not,  upon  a  just  view  of  the  statute, 
show  a  right  of  action.  There  was  no  pretense  that  his  opponent 
by  dilatory  means  had  obstructed  his  right  under  the  judgment, 


JUDICIAL  DECISIONS  251 

and  had  effectually  prevented  his  getting  into  possession  in  com- 
pliance with  it,  until  his  estate  had  come  to  an  end  by  effluxion 
of  time. 

In  the  present  case  the  defendant  BonncU  appealed  against  Hol- 
comb's  recovery  before  the  commissioner,  and  in  order  to  effectuate 
the  appeal  and  keep  Holcomb  out,  she  gave  this  bond  to  secure  rent ; 
and  the  circuit  court,  whilst  Holcomb's  term  was  still  running,  and 
when  it  had  about  two-thirds  of  a  year  to  continue,  also  gave  judg- 
ment on  the  appeal  for  him,  and  adjudged  his  right  to  possession, 
and  that  he  was  entitled  to  process  to  be  put  in,  and  she  then 
delayed  his  remedy  of  restitution  until  his  term  was  about  expired ; 
and  she  now  resists  a  recovery  on  the  bond  for  the  reason  that  he 
did  not  do  the  very  thing  which  the  giving  of  the  bond  enabled  her 
to  prevent  his  doing,  and  which  she  did  prevent  his  doing. 

Having  by  means  of  the  bond  placed  herself  in  a  position  which 
enabled  her  to  delay  Holcomb  in  getting  possession,  which  the 
judgment  determined  he  was  entitled  to,  until  his  right  to  go  in  was 
substantially  terminated  by  the  expiration  of  his  term,  and  having 
in  fact  so  delayed  him,  she  now  insists  that  under  the  statute  as 
explained  in  Delashman  v.  Berry,  Holcomb  is  cut  off  from  all 
remedy  on  the  bond  for  the  very  reason  that  he  did  not  obtain  actual 
possession  under  his  judgment. 

I  think  this  position  cannot  be  sustained.  The  legislature  could 
never  have  intended  to  require  a  bond  as  a  condition  of  appeal, 
and  at  the  same  time  have  intended  that  it  should  be  worthless  if 
the  appellant  after  judgment  for  possession  in  the  appellate  court 
should  by  mere  dilatory  action  then  delay  actual  restitution  to  the 
plaintiff  until  made  impossible  as  a  consequence  of  the  expiration 
of  his  term.  Any  such  view  would  lead  to  absurdity  and  gross 
injustice.  It  would  afford  a  bounty  to  trickery.  When  the  plain- 
tiff recovered  on  the  appeal  in  the  circuit  court  and  the  defendant 
refrained  from  carrying  the  case  further,  the  former  was  absolutely 
entitled  to  restitution  and  all  that  remained  to  be  done  to  give  him 
restitution  was  absolutely  due  to  him. 

No  lawful  right  existed  anywhere  to  deny  him.  He  had  done 
all  that  was  practicable  for  him  to  do,  and  was  not  at  fault  in  any 
way.  He  submitted,  as  he  was  compelled  to  submit,  so  far  as  the 
record  shows,  to  the  stay  obtained  by  defendant  Bonnell,  and  which 
without  the  bond  she  could  not  have  been  in  a  position  to  obtain, 
and  she  should  not  be  allowed  to  defeat  the  bond  by  setting  up  his 
failure  to  do  what  she  thus  made  it  impossible  for  him  to  do. 


252  SOURCES  AND  FORIVIS  OF  LAW 

I  think  the  judgment  should  be  reversed,  with  costs,  and  a  new 
trial  ordered. 

Campbell,  and  Cooley,  J  J.,  concurred. 


BOOKS  OF  AUTHORITY 

Kent,  Commentaries,  I,  499. 

The  reports  of  adjudged  cases  are  admitted  to  contain  the  highest 
and  most  authentic  evidence  of  the  principles  and  rules  of  the 
common  law;  but  there  are  numerous  other  works  of  sages  in 
the  profession  which  contribute  very  essentially  to  facilitate  the 
researches  and  abridge  the  labor  of  the  student.  These  works 
acquire  by  time,  and  their  intrinsic  value,  the  weight  of  authority; 
and  the  earlier  text-books  are  cited  and  relied  upon  as  such,  in  the 
discussions  at  the  bar  and  upon  the  bench,  in  cases  where  judicial 
authority  is  wanting. 

One  of  the  oldest  of  these  treatises  is  Glanville's  7  ractatiis  de 
Legibus  Angliae,  composed  in  the  reign  of  Henry  H.,  in  which  he 
was  chief  justiciary,  and  presided  in  the  aula  regis.  It  is  a  plain, 
dry,  perspicuous  essay  on  the  ancient  actions  and  the  forms  of 
writs  then  in  use.  It  has  become  almost  obsolete  and  useless  for 
any  practical  purpose,  owing  to  the  disuse  of  the  ancient  actions; 
but  it  is  a  curious  monument  of  the  improved  state  of  the  Norman 
administration  of  justice.  It  is  peculiarly  venerable,  if  it  be,  as  it 
is  said,  the  most  ancient  book  extant  upon  the  laws  and  customs  of 
England.  It  has  been  cited,  and  commented  upon,  and  extolled, 
by  Lord  Coke,  Sir  Matthew  Hale,  Sir  Henry  Spelman,  Selden, 
Blackstone,  and  most  of  the  eminent  lawyers  and  antiquaries  of  the 
two  last  centuries.  Mr.  Reeves  says  that  he  incorporated  the  whole 
of  Glanville  into  his  History  of  the  English  Law. 

Bracton  wrote  his  treatise,  DeLegihus  et  Consuetudinihus  Angliae, 
in  the  reign  of  Henry  HI.,  and  he  is  said  to  have  been  a  judge 
itinerant  in  that  reign,  and  professor  of  law  at  Oxford.^     He  is  a 

^  The  latter  portion  of  this  statement  is  incorrect.  "The  author,  Henry  de 
Bratton  (from  a  village  of  Bratton,  in  Devonshire)  was  a  clergyman  and  royal 
judge  under  Henry  HI  (1216-1272).  We  meet  him  first  in  1245  as  itinerant 
justice,  from  1248  to  1267  as  assize  judge  in  the  southwestern  counties  of  England. 
His  permanent  office  was  that  of  royal  judge  in  the  placita  coram  ipso  rege  {qua 
sequuntur  regem),  i.e.,  the  old  curia  regis  proper.  He  never  sat  in  the  bancuni 
regis  at  Westminster.  He  died  in  1268.  His  name,  the  incorrect  spelling  of  which 
he  cited  as  an  illustration  of  the  invalidity  of  a  writ,  was  frequently  misspelled 


BOOKS  OF  AUTHORITY  253 

classical  writer,  and  has  been  called,  by  a  perfect  judge  of  his 
merits,  the  father  of  the  English  law,  and  the  great  ornament  of 
the  age  in  which  he  lived.  His  work  is  a  systematic  performance, 
giving  a  complete  view  of  the  law  in  all  its  titles,  as  it  stood  at  the 
time  it  was  written ;  and  it  is  filled  with  copious  and  accurate  details 
of  legal  learning.  It  treats  of  the  several  ways  of  acquiring,  main- 
taining, and  recovering  property,  much  in  the  manner  of  the 
Institutes  of  Justinian.  The  style,  clear,  expressive,  and  some- 
times polished,  has  been  ascribed  to  the  influence  of  the  civil  and 
canon  law,  which  he  had  studied  and  admired;  and  the  work 
evinces,  by  the  freedom  of  the  quotations,  that  he  had  drank  deep 
at  those  fountains. 

In  the  reign  of  Edward  I.,  Bracton  was  reduced  into  a  com- 
pendium by  Thornton,  which  shows,  says  Selden.  how  great  the 
authority  of  Bracton  was  in  the  time  of  Edward  I.  He  continued 
to  be  the  repository  of  ancient  English  jurisprudence,  and  the  prin- 
cipal source  of  legal  authority,  down  to  the  time  of  the  publication 
of  the  Institutes  of  Lord  Coke. 

Britton  and  Fleta,  two  treatises  in  the  reign  of  Edward  I.,  were 
nothing  more  than  appendages  to  Bracton,  and  from  whom  they 
drew  largely.  Lord  Coke  says  that  Britton  was  Bishop  of  Hereford^ 
and  of  profound  judgment  in  the  common  law,  and  that  Fleta  was 
written  by  some  learned  lawyer,  while  in  confinement  in  the  Fleet 
prison.  The  dissertation  which  Selden  annexed  to  the  edition  of 
Fleta,  printed  in  his  time,  is  evidence  of  the  high  estimation  in 
which  the  work  was  then  held. 

Sir  John  Fortescue's  treatise,  De  Laudihus  Legum  Angliae,  was 
written  in  the  reign  of  Henry  VI.,  under  whom  he  was  Chief  Justice, 
and  afterwards  Chancellor.  It  is  in  the  form  of  a  dialogue  between 
him  and  the  young  prince,  and  he  undertakes  to  show  that  the 
common  law  was  the  most  reasonable  and  the  most  ancient  in 

by  copyists.  As  a  consequence,  he  has  come  down  to  posterity  as  Bracton." 
Brunner,  Sources  of  EngHsh  Law,  Select  Essays  in  Anglo-American  Legal  His- 
tory, II,  7,  35. 

^  This  is  incorrect.  "According  to  the  investigations  of  its  latest  editor,  it 
owes  its  origin  to  a  project  (which  is  historically  verifiable)  of  Edward  I  to  cause 
a  compilation  of  English  law  to  be  made  after  the  manner  of  the  Institutes.  The 
work  is  not  written  in  the  style  of  a  law  book,  but  its  propositions  are  couched 
in  the  authoritative  language  of  a  lawgiver.  .  .  .  The  author,  Britton,  was  prob- 
ably a  clerk  in  the  service  of  the  crown."  Brunner,  Sources  of  English  Law,  Select 
Essays  in  Anglo-American  Legal  History,  II,  7,  37. 


254  SOURCES  AND  FORMS  OF  LAW 

Europe,  and  superior  to  the  civil  law.  It  displays  sentiments  of 
liberty,  and  a  sense  of  a  limited  monarchy,  remarkable,  in  the  fierce 
and  barbarous  period  of  the  Lancastrian  civil  wars,  and  an  air  of 
probity  and  piety  runs  through  the  work.  He  insisted,  for  instance, 
that  the  conviction  of  criminals  by  juries,  and  without  torture,  was 
much  more  just  and  humane  than  the  method  of  the  continental 
nations;  and  that  the  privilege  of  challenging  jurors,  and  of  bring- 
ing writs  of  attaint  upon  corrupt  verdicts,  and  the  usual  wealth  of 
jurors,  afforded  that  security  to  the  lives  and  property  of  English 
subjects,  which  no  other  country  was.  capable  of  affording.  He 
run  a  parallel,  in  many  instances,  between  the  common  and  the 
civil  law,  in  order  to  show  the  superior  equity  of  the  former,  and 
that  the  proceedings  in  courts  of  justice  were  not  so  dilatory  as  in 
other  nations.  Though  some  of  the  instances  of  that  superiority 
which  he  adduces,  such  as  the  illegitimacy  of  ante-nuptial  children 
and  th«  doctrine  of  feudal  wardships,  are  of  no  consequence,  yet 
the  security  arising  from  trial  by  jury,  and  the  security  of  life  and 
property  by  means  of  the  mixed  government  of  England,  and  the 
limitations  of  the  royal  prerogative,  were  solid  and  pre-eminent 
marks  of  superiority. 

Littleton's  Book  of  Tenures  was  composed  in  the  reign  of  Edward 
IV.,  and  it  is  confined  entirely  to  the  doctrines  of  the  old  English 
law,  concerning  the  tenure  of  real  estates,  and  the  incidents  and 
services  relating  thereto.  In  the  first  book,  Littleton  treats  of  the 
quantity  of  interest  in  estates,  under  the  heads  of  fee-simple,  fee- 
tail,  tenant  in  dower,  tenant  by  the  curtesy,  tenant  for  life,  for  years, 
and  at  will.  In  the  second  book,  he  treats  of  the  several  tenures  and 
services  by  which  lands  were  then  held,  such  as  homage,  fealty, 
villenage,  and  knight  service.  In  the  third  book,  he  treats  of  divers 
subjects  relative  to  estates  and  their  tenures,  under  the  heads  of 
parceners,  joint  tenants,  estates  on  condition,  releases,  warranty,  &c. 
He  explained  the  learning  of  that  period  on  the  subject  of  tenures 
and  estates,  with  a  felicity  of  arrangement,  and  perspicuity  and  pre- 
cision of  style,  that  placed  him  above  all  other  writers  on  the  law. 
No  work  ever  attained  a  more  decided  and  permanent  reputation 
for  accuracy  and  authority.  Lord  Coke  says,  that  Littleton's  Ten- 
ures was  the  most  perfect  and  absolute  work,  and  as  free  from  error 
as  any  book  that  ever  was  written  on  any  human  science;  and  he 
is  justly  indignant  at  the  presumptuous  and  absurd  censures  which 
the  celebrated  civilian,  Hotman,  was  pleased  to  bestow  on  Little- 
ton's clear  and  accurate  view  of  English  feudal  tenures.     He  said 


BOOKS  OF  AUTHORITY  255 

he  had  known  many  of  his  cases  drawn  in  question,  but  never  could 
find  any  judgment  given  against  any  of  them,  which  could  not  be 
affirmed  of  any  other  book  in  our  law.  The  great  excellence  of 
Littleton  is  his  full  knowledge  of  the  subject,  and  the  neatness  and 
simplicity  of  his  manner.  He  cites  but  very  few  cases,  but  he  holds 
no  opinion,  says  his  great  commentator,  but  what  is  supported  by 
authority  and  reason.  A  great  part  of  Littleton  is  not  now  law, 
or  is  entirely  obsolete  with  us ;  and  particularly  much  of  the  matter 
in  the  chapters  on  estates  in  fee-tail,  copyholds,  feudal  services, 
discontinuance,  attornment,  remitter,  confirmation,  and  warranty. 
But,  even  at  this  day,  what  remains  concerning  tenures  cannot  be 
well  understood  without  a  general  knowledge  of  what  is  abolished ; 
and  even  the  obsolete  part  of  Littleton  can  be  studied  with  pleasure 
and  profit  by  all  who  are  desirous  to  trace  the  history  and  grounds 
of  the  law.  It  has  been  supposed  by  Mr.  Butler  that  Littleton's 
treatise  would  still  be  a  proper  introduction  to  the  institutes  of  the 
English  law  on  the  subject  of  real  estates. 

Perkins's  Treatise  of  the  Laws  of  England,  written  in  the  reign 
of  Henry  VI 1 1.,  has  always  been  deemed  a  valuable  book  for  the 
learning  and  ingenuity  displayed  in  it  relating  to  the  title  and  con- 
veyance of  real  property.  Coke  said  it  was  wittily  and  learnedly 
composed ;  and  Lord  Mansfield  held  it  to  be  a  good  authority  in  point 
of  law.  It  treats  of  grants,  deeds,  feoffments,  exchange,  dower, 
curtesy,  devises,  surrenders,  reservations,  and  conditions;  and  it 
abounds  with  citations,  and  supports  the  positions  laid  down  by  ref- 
erences to  the  Year  Books,  and  Fitzherbert's  Abridgment. 

The  Dialogue  between  a  Doctor  of  Divinity  and  a  Student  in 
Laiv  was  written  by  St.  Germain,  in  the  reign  of  Henry  VI 1 1.,  and 
discusses,  in  a  popular  manner,  many  principles  and  points  of  com- 
mon law.  The  seventeenth  edition  of  this  work  was  published  in 
1787,  and  dedicated  to  the  younger  students  and  professors  of  law. 
It  has  always  been  considered  by  the  courts,  and  the  best  of  the 
juridical  writers,  as  a  book  of  merit  and  authority. 

But  the  legal  productions  of  the  preceding  ages  were  all  surpassed 
in  value  and  extent  in  the  reigns  of  Elizabeth  and  James  by  the 
results  of  the  splendid  talents  and  immense  erudition  of  Bacon  and 
Coke.  The  writings  of  Lord  Bacon  on  the  municipal  law  of  Eng- 
land are  not  to  be  compared  in  reputation  to  his  productions  in 
physical  and  moral  science;  but  it  is  nevertheless  true,  that  he  shed 
light  and  learning,  and  left  the  impression  of  profound  and  original 
thought,  on  every  subject  which  he  touched.     It  was  the  course  of 


256  SOURCES  AND  FORMS  OF  LAW 

his  life  to  connect  law  with  other  studies,  and  therefore,  he  admitted 
that  his  arguments  might  hav^e  the  more  variety,  and  perhaps  the 
greater  depth  of  reason.  His  principal  law  tracts  are  his  Elements 
of  ti/e  Cojnmon  Law,  containing  an  illustration  of  the  most  impor- 
tant maxims  of  the  common  law,  and  of  the  use  of  the  law  in  its 
application  to  the  protection  of  person,  property,  and  character,  and 
his  Reading  upon  the  Statute  of  Uses.  Lord  Bacon  seems  to  have 
disdained  to  cite  authorities,  in  his  law  treatises ;  and  in  that  respect 
he  approved  of  the  method  of  Littleton  and  Fitzherbert,  and  con- 
demned that  of  Perkins  and  Staunforde.  He  admits,  however,  that 
in  his  own  private  copy  he  had  all  his  authorities  quoted,  and  that 
he  did  sometimes  "weigh  down  authorities  by  evidence  of  reason"; 
and  that  he  intended  rather  to  correct  the  law  than  soothe  received 
error,  or  endeavor  to  reconcile  contradictions  by  unprofitable  sub- 
tlety. He  made  a  proposal  to  King  James  for  a  digest  of  the  whole 
of  the  common  and  statute  law  of  England;  and  if  he  had  been 
encouraged  and  enabled  to  employ  the  resources  of  his  great  mind 
on  such  a  noble  work,  he  would  have  done  infinite  service  to  man- 
kind, and  have  settled  in  his  favor  the  question,  which  he  said  would 
be  made  with  posterity,  whether  he  or  Coke  was  the  greater  lawyer. 
The  writings  of  Lord  Bacon  are  distinguished  for  the  perspicuity 
and  simplicity  with  which  every  subject  is  treated. 

Lord  Coke's  Institutes  have  had  a  most  extensive  and  permanent 
influence  on  the  common  law  of  England.  The  first  part  is  a  com- 
mentary upon  Littleton's  Tenures;  and,  notwithstanding  the  mag- 
nitude of  the  work,  it  has  reached  seventeen  editions.  Many  of  the 
doctrines  which  his  writings  explain  and  illustrate  have  become 
obsolete,  or  have  been  swept  away  by  the  current  of  events.  The 
influence  of  two  centuries  must  inevitably  work  a  great  revolution 
in  the  laws  and  usages,  as  well  as  in  the  manners  and  taste  of  a 
nation.  Perhaps  everything  useful  in  the  Institutes  of  Coke  may 
be  found  more  methodically  arranged,  and  more  interestingly 
taught,  in  the  modern  compilations  and  digests;  yet  his  authority 
on  all  subjects  connected  with  the  ancient  law  is  too  great  and  too 
venerable  to  be  neglected.  The  writings  of  Coke,  as  Butler  has 
observed,  stand  between  and  connect  the  ancient  and  the  modern 
law  —  the  old  and  new  jurisprudence.  He  explains  the  ancient 
system  of  law  as  it  stood  in  his  day,  and  he  points  out  the  leading 
circumstances  of  the  innovation  which  was  begun.  We  have 
in  his  works  the  beginning  of  the  disuse  of  real  actions;  the 
tendency  of  the  nation  to  abolish  the  military  tenures;  the  rise 


BOOKS  OF  AUTHORITY  257 

of  a  system  of  equity  jurisdiction,  and  the  outlines  of  every 
point  of  modern  law. 

The  second  part  of  the  Institutes  of  Coke  is  a  commentary  upon 
the  ancient  statutes,  beginning  with  Magna  Charta,  and  proceeding 
down  to  the  reign  of  Henry  VHI.;  and  his  commentaries  upon  the 
ancient  statutes  consisted,  as  he  himself  declared,  of  the  authentic 
resolutions  of  the  courts  of  justice,  and  were  not  like  the  glosses  of 
the  civilians  upon  the  text  of  the  civil  law,  which  contain  so  many 
diversities  of  opinion  as  to  increase  rather  than  to  resohe  doubts 
and  uncertainties.  His  commentary  upon  Magna  Charta,  and  par- 
ticularly on  the  celebrated  29th  chapter,  is  deeply  interesting  to  the 
lawyers  of  the  present  age,  as  well  from  the  value  and  dignity  of 
the  text,  as  the  spirit  of  justice  and  of  civil  liberty  which  pervades 
and  animates  the  work.  In  this  respect.  Lord  Coke  eclipses  his  con- 
temporary and  great  rival,  Lord  Bacon,  who  was  as  inferior  to 
Coke  in  a  just  sense  and  manly  vindication  of  the  freedom  and 
privileges  of  the  subject,  as  he  was  superior  in  general  science  and 
philosophy.  Lord  Coke,  in  a  very  advanced  age,  took  a  principal 
share  in  proposing  and  framing  the  celebrated  Petition  of  Right, 
containing  a  parliamentary  sanction  of  those  constitutional  limita- 
tions upon  the  royal  prerogative  which  were  deemed  essential  to 
the  liberties  of  the  nation. 

The  third  and-  fourth  parts  of  the  Institutes  treat  of  high  treason 
and  the  other  pleas  of  the  crown,  and  of  the  history  and  antiquities 
of  the  English  courts.  The  harshness  and  severity  of  the  ancient 
criminal  code  of  England  are  not  suited  to  the  taste  and  moral  sense 
of  the  present  age;  and  those  parts  of  the  Institutes  are  of  very 
inconsiderable  value  and  use,  except  it  be  to  enlighten  the  researches 
of  the  legal  antiquary.  In  this  respect.  Coke's  Pleas  of  the  Crown 
are  inferior  to  the  work  under  that  title  by  Staunforde,  who  wrote 
in  the  age  of  Philip  and  Mary,  and  was  the  earliest  writer  who 
treated  didactically  on  that  subject.  Staunforde  wrote  in  law 
French;  but  Lord  Coke,  more  wisely  and  benevolently,  wrote  in 
English,  because,  he  said,  the  matter  of  which  he  treated  concerned 
all  the  subjects  of  the  realm. 

Before  we  quit  the  period  of  the  old  law,  we  must  not  omit  to 
notice  the  grand  abridgments  of  Statham,  Fitzherbert,  and  Brooke. 
Statham  was  a  baron  of  the  Exchequer,  in  the  time  of  Edward  IV. 
His  abridgment  of  the  law  was  a  digest  of  most  titles  of  the  law, 
comprising  under  each  head  adjudged  cases  from  the  Year  Books, 
given  in  a  concise  manner.     The  cases  were  strung  together  without 


258  SOURCES  AND  FORMS  OF  LAW 

regard  to  connection  of  matter.  It  is  doubtful  whether  it  was  printed 
before  or  after  Fitzherbert's  work,  but  the  latter  entirely  super- 
seded it.  Fitzherbert  was  published  in  the  reign  of  Henry  VIII., 
and  came  out  in  1514,  and  was  for  that  period,  a  work  of  singular 
learning  and  utility.  Brooke  was  published  in  1573,  and  in  a  great 
degree  superseded  the  others.  The  two  last  abridgments  contain 
the  substance  of  the  Year  Books  regularly  digested;  and  by  the 
form  and  order  which  they  gave  to  the  rude  materials  before  them, 
and  the  great  facility  which  they  afforded  to  the  acquisition  of 
knowledge,  they  must  have  contributed  very  greatly  and  rapidly  to 
the  improvement  of  legal  science.  Even  those  exceedingly  laborious 
abridgments  were  in  their  turn  superseded  by  the  abridgments  of 
Rolle  and  his  successors. 

The  treatise  of  Sir  Henry  Finch,  being  a  discourse  in  four  books, 
on  the  maxims  and  positive  grounds  of  the  law,  was  first  published  in 
French,  in  1613;  and  we  have  the  authority  of  Sir  William  Black- 
stone  for  saying,  that  his  method  was  greatly  superior  to  that  in 
all  the  treatises  that  were  then  extant.  His  text  was  weighty,  con- 
cise, and  nervous,  and  his  illustrations  apposite,  clear  and  authentic. 
But  the  abolition  of  the  feudal  tenures,  and  the  disuse  of  real  actions, 
have  rendered  half  of  his  work  obsolete. 

Sheppard's  Touchstone  of  Common  Assurances  was  the  produc- 
tion of  Mr.  Justice  Dodderidge,  in  the  reign  of  James  I.  It  is  a 
work  of  great  value  and  authority,  touching  the  common-law  modes 
of  conveyance,  and  those  derived  from  the  Statute  of  Uses.  It 
treats  also  copiously  of  the  law  of  uses  and  devises;  but  the  great 
defect  of  the  book  is  the  want  of  that  lucid  order  and  perspicuous 
method  which  are  essential  to  the  cheerful  perusal  and  ready  per- 
ception of  the  merits  of  such  a  work.  The  second  volume  of  Col- 
lectanea Juridica  has  an  analysis  of  the  theory  and  practice  of 
conveyancing,  which  is  only  a  compendious  abridgment  of  the 
Touchstone',  and  there  is  a  very  improved  edition  of  it  by  Preston, 
who  has  favored  the  profession  with  several  excellent  tracts  on  the 
law  of  real  property. 

Rolle's  Abridgment  of  the  Law  was  published  soon  after  the 
Restoration,  with  an  interesting  preface  by  Sir  Matthew  Hale.  It 
brings  down  the  law  to  the  end  of  the  reign  of  Charles  I.,  and 
though  it  be  an  excellent  work,  and,  in  point  of  method,  succinctness 
and  legal  precision,  a  model  of  a  good  abridgment,  Sir  Matthew 
Hale  considered  it  an  unequal  monument  of  the  fame  of  RoUc,  and 
that  it  fell  short  of  what  might  have  been  expected  from  his  abilities 


BOOKS  OF  AUTHORITY  259 

and  great  merit.  It  is  also  deemed  by  Mr.  Hargrave  a  great  defect 
in  Viner's  very  extensive  abridgment,  that  he  should  have  attempted 
to  engraft  it  on  such  a  narrow  substance  as  RoUe's  work.  Rolle 
was  Chief  Justice  of  England  under  the  protectorate  of  Cromwell, 
and  under  the  preceding  commonwealth ;  but  as  his  abridgment  was 
printed  in  the  reign  of  Charles  II.,  he  has  no  other  title  annexed  to 
his  name  than  that  of  Sergeant  Rolle,  and  his  republican  dignity 
was  not  recognized. 

Since  the  period  of  the  English  revolution,  the  new  digests  have 
superseded  the  use  of  the  former  ones;  and  Bacon,  Viner,  Comyns, 
and  Cruise  contain  such  a  vast  accession  of  modern  law  learning 
that  their  predecessors  have  fallen  into  oblivion.  Viner's  Abridg- 
ment, with  all  its  defects  and  inaccuracies,  is  a  convenient  part  of 
every  lawyer's  library.  We  obtain  by  it  an  easy  and  prompt  access 
to  the  learning  of  the  Year  Books  and  the  old  abridgments,  and  the 
work  is  enriched  with  many  reports  of  adjudged  cases  not  to  be 
found  elsewhere;  but,  after  all  that  can  be  said  in  its  favor,  it  is  an 
enorm.ous  mass  of  crude,  undigested  matter,  and  not  worth  the  labor 
of  the  compilation.  The  Digest  of  Lord  Chief  Baron  Comyns  is 
a  production  of  vastly  higher  order  and  reputation,  and  it  is  the 
best  digest  extant  upon  the  entire  body  of  the  English  law.  Lord 
Kenyon  held  his  opinion  alone  to  be  of  great  authority,  for  he  was 
considered  by  his  contemporaries  as  the  most  able  lawyer  in  West- 
minster Hall.  The  title  Pleader  has  often  been  considered  as  the 
most  elaborate  and  useful  head  of  the  work ;  but  the  whole  is  dis- 
tinguished for  the  variety  of  the  matter,  its  lucid  order,  the  precision 
and  brevity  of  the  expression,  and  the  accuracy  and  felicity  of  the 
execution.  Bacon's  Abridgment  was  composed  chiefly  from  ma- 
terials left  by  Lord  Chief  Baron  Gilbert.  It  has  more  of  the  char- 
acter of  an  elementary  work  than  Comyn's  Digest.  The  first  edition 
appeared  in  1736,  and  was  much  admired,  and  the  abridgment  has 
maintained  its  great  influence  down  to  the  present  time,  as  being 
a  very  convenient  and  valuable  collection  of  principles,  arising  under 
the  various  titles  in  the  immense  system  of  the  English  law.  And 
in  connection  with  this  branch  of  the  subject,  it  will  be  most  con- 
venient, though  a  little  out  of  the  order  of  time,  to  take  notice  of 
Cruise's  recent  and  very  valuable  Digest  of  the  Laws  of  Engtand  re- 
specting Real  Property.  It  is  by  far  the  most  perfect  elementary 
work  of  the  kind  which  we  have  on  the  doctrine  of  real  property, 
and  it  is  distinguished  for  its  methodical,  accurate,  perspicuous  and 
comprehensive  view  of  the  subject.     All  his  principles  are  supported 


260  SOURCES  AND  FORMS  OF  LAW 

and  illustrated  by  the  most  judicious  selection  of  adjudged  cases. 
They  are  arranged  with  great  skill,  and  applied  in  confirmation  of 
his  doctrines  with  the  utmost  perspicuity  and  force. 

The  various  treatises  of  Lord  Chief  Baron  Gilbert  are  of  high 
value  and  character,  and  they  contributed  much  to  advance  the 
science  of  law  in  the  former  part  of  the  last  century.  His  treatise 
on  Tenures  deserv'es  particular  notice,  as  having  explained,  upon 
feudal  principles,  several  of  the  leading  doctrines  in  Littleton  and 
Coke;  and  it  is  a  very  elementary  and  instructive  essay  upon  that 
abstruse  branch  of  learning.  His  essay  on  the  Laiv  of  Evidence  is 
an  excellent  performance,  and  the  groundwork  of  all  the  subse- 
quent collections  on  that  subject;  and  it  still  maintains  its  character 
notwithstanding  the  law  of  evidence,  like  most  other  branches  of  the 
law,  and  particularly  the  law  of  commercial  contracts,  has  expanded 
with  the  progress  and  exigencies  of  society.  His  treatise  on  the 
Law  of  Uses  and  Trusts  is  another  work  of  high  authority,  and  it 
has  been  rendered  peculiarly  valuable  by  the  revision  and  copious 
notes  of  Mr.  Sugden. 

The  treatises  on  the  Pleas  of  the  Crown,  by  Sir  Matthew  Hale 
and  Sergeant  Hawkins,  appeared  early  in  the  last  century,  and  they 
contributed  to  give  precision  and  certainty  to  that  most  deeply 
interesting  part  of  jurisprudence.  They  are  both  of  them  works  of 
authority  ?nd  have  had  great  sanction,  and  been  uniformly  and 
strongly  recommended  to  the  profession.  Sir  Martin  Wright's 
Introduction  to  the  Law  of  Tenures  is  an  excellent  work,  and  the 
value  of  it  cannot  be  better  recommended  than  by  the  fact  that  Sir 
William  Blackstone  has  interwoven  the  substance  of  that  treatise 
into  the  second  volume  of  his  Commentaries.  Dr.  Wood  published 
in  1722,  his  Institutes  of  the  Laws  of  England.  His  object  was  to 
digest  the  law,  and  to  bring  it  into  better  order  and  system.  By  the 
year  1754,  his  work  had  passed  through  eight  folio  editions,  and 
thereby  afforded  a  decisive  proof  of  its  value  and  popularity.  It  was 
greatly  esteemed  by  the  lawyers  of  that  age;  and  an  American  judge 
(himself  a  learned  lawyer  of  the  old  school)  has  spoken  of  Wood 
as  a  great  authority,  and  of  weight  and  respect  in  Westminster  Hall. 

But  it  was  the  fate  of  Wood's  Institutes  to  be  entirely  superseded 
by  more  enlarged,  more  critical,  and  more  attractive  publications, 
and  especially  by  the  Commentaries  of  Sir  William  Blackstone,  who 
is  justly  placed  at  the  head  of  all  the  modern  writers  who  treat  of  the 
general  elementary  principles  of  the  law.  By  the  excellence  of  his 
arrangement,  the  variety  of  his  learning,  the  justness  of  his  taste, 


BOOKS  OF  AUTHORITY  261 

and  the  purity  and  elegance  of  his  style,  he  communicated  to  those 
subjects  which  were  harsh  and  forbidding  in  the  pages  of  Coke 
the  attractions  of  a  liberal  science,  and  the  embellishments  of  polite 
literature.  The  second  and  third  volumes  of  the  Commentaries  are 
to  be  thoroughly  studied  and  accurately  understood.  What  is 
obsolete  is  necessary  to  illustrate  that  which  remains  in  use,  and  the 
greater  part  of  the  matter  in  those  volumes  is  law  at  this  day  and  on 
this  side  of  the  Atlantic. 


262  THE  COMMON  LAW  IN  AMERICA 


CHAPTER  IV 
THE   COMMON   LAW   IN   AMERICA 

1.     RECEPTION  1 

Reinsch,  The  English  Common  Law  in  the  Early  American 
Colonies  (Bulletin  of  the  University  of  Wisconsin,  Historical 
Series,  II,  No.  4). 

The  earliest  settlers  in  many  of  the  colonies  made  bodies  of  law, 
which,  from  every  indication,  they  considered  a  complete  state- 
ment of  the  needful  legal  regulations.  Their  civilization  being 
primitive,  a  brief  code  concerning  crimes,  torts,  and  the  simplest 
contracts,  in  many  ways  like  the  dooms  of  the  Anglo-Saxon  kings, 
would  be  sufficient.  Not  only  did  these  codes  innovate  upon, 
and  depart  from,  the  models  of  common  law,  but,  in  matters 
not  fixed  by  such  codes,  there  was  in  the  earliest  times  no  ref- 
erence to  that  system.  They  were  left  to  the  discretion  of  the 
magistrates. 

In  many  cases  the  colonists  expressed  an  adhesion  to  the  com- 
mon law,  but,  when  we  investigate  the  actual  administration  of 
justice,  we  find  that  usually  it  was  of  a  rude,  popular,  summary 
kind,  in  which  the  refined  distinctions,  the  artificial  developments 
of  the  older  system  ha\e  no  place.  A  technical  system  can,  of 
course,  be  administered  only  with  the  aid  of  trained  lawyers.  But 
these  were  generally  not  found  in  the  colonies  during  the  17th 
century,  and  even  far  down  into  the  18th  we  shall  find  that  the 
legal  administration  was  in  the  hands  of  laymen  in  many  of  the 
provinces.  Only  as  the  lawyers  grow  more  numerous  and  recei\e 
a  better  training,  do  we  find  a  general  reception  and  use  of  the 
more  refined  theories  of  the  common  law.  It  is  but  natural  that, 
with  increased  training,  the  courts  and  practitioners  should  turn 
to  the  great  reservoir  of  legal  experience  in  their  own  language  for 

^  Select  Essays  in  Anglo-American  Legal  History,  I,  367-463  and  bibliography 
on  p.  366;  Loyd,  Early  Courts  of  Pennsylvania;  Warren,  History  of  the  Ameri- 
can Bar;  Hilkey,  Legal  Development  in  Colonial  Massachusetts,  Columbia 
University  Studies  in  History,  Economics  and  Public  Law,  Vol.  XXXVH,  No.  2. 


RECEPTION  263 

guidance  and  information;  the  courts  would  be  more  ready  to 
favor  the  theory  of  the  adoption  of  the  common  law,  as  it  increased 
their  importance,  virtually  giving  them  legislative  power.  The 
foregoing  statements  are  especially  true  of  New  England,  where 
the  subsidiary  force  of  the  common  law  was  plainly  denied ;  where 
a  system  of  popular  law  (Volksrecht)  grew  up;  and  where  the  law 
of  God  took  the  place  of  a  secondary  system. 

The  legal  theory  of  the  transfer  has  its  established  place  in 
American  jurisprudence;  but,  historically,  it  should  be  modified 
so  as  to  bring  out  the  fact  that  we  had  a  period  of  rude,  untechnical 
popular  law,  followed,  as  lawyers  became  numerous  and  the  study 
of  law  prominent,  by  the  gradual  reception  of  most  of  the  rules  of 
the  English  common  law.  In  this  way  only  shall  we  understand, 
from  the  first,  the  very  characteristic  and  far-reaching  departures 
from  older  legal  ideas  which  are  found  in  the  New  World;  while, 
at  the  same  time,  its  full  importance  is  assigned  to  the  influence  of 
English  jurisprudence  in  moulding  our  legal  thought.  The  theory 
of  the  courts  is  an  incomplete,  one-sided  statement  needing  his- 
torical modification.  When  the  courts  come  to  analyze  the  nature 
of  the  law  actually  brought  over  by  the  colonists,  they  find  it  a 
method  of  reasoning,  "a  system  of  legal  logic,  rather  than  a  code  of 
rules";  or  the  rule,  "live  honestly,  hurt  nobody,  and  render  to  every 
man  his  due. "  Such  a  very  indefinite  conception  of  the  matter  is  with- 
out value  historically;  on  the  basis  of  this  indefinite  notion  there  has 
been  claimed  for  the  courts  an  almost  unlimited  power,  under  the 
guise  of  selecting  the  applicable  principles  of  the  common  law, 
to  establish  virtually  new  and  unprecedented  legal  rules.  On  the 
other  hand,  a  historical  study  will  reveal  a  most  interesting  organic 
growth,  and,  after  the  records  have  been  more  fully  published,  no 
system  will  offer  more  of  interest  to  inquiring  students  than  that 
developed  on  American  soil.  The  study  of  the  documents  reveals 
great  diversities  in  the  early  systems  of  colonial  laws.  Then 
with  the  growth  of  national  feeling  there  comes  also  a  growth  of 
unification  of  legal  principles,  for  which  the  English  common  law 
affords  the  ideal  or  criterion.  And,  though  during  the  decade 
immediately  preceding  independence,  the  English  common  law 
was  generally  praised  and  apparently  most  readily  received  by 
the  larger  part  of  American  courts,  still  the  marks  of  the  old 
popular  law  remain*  strong,  and  most  of  the  original  features 
in  American  jurisprudence  can  be  traced  back  to  the  earliest 
times. 


264  THE  COMMON  LAW  IN  AMERICA 

Resolve  of  the  General  Court  of  Massachusetts  Bay, 
25  May,  1636  (Mass.  Colonial  Records,  I,  174-5). 
The  Goun"^,  Deputy  Goun^  Tho:  Dudley,  John  Haynes,  Rich: 
Bellingham,  Esq.,  Mr  Cotton,  Mr  Peters,  &  Mr  Shepheard  are 
intreated  to  make  a  draught  of  lawes  agreeable  to  the  word  of 
God,  w"^'*  may  be  the  ffundamentalls  of  this  comonAVealth,  &  to 
present  the  same  to  the  ncxte  Gen/all  Court.  And  it  is  ordered, 
that  in  the  meane  tyme  the  magistrates  &  their  assosiates  shall 
pcede  in  the  courts  to  heare  &  determine  all  causes  according  to  the 
lawes  nowe  established,  &  where  there  is  noe  law,  then  as  neere 
the  lawe  of  God  as  they  can;  &  for  all  busines  out  of  Court  for  w'^'^ 
there  is  noe  certaine  rule  yet  sett  downe,  those  of  the  standing 
counsell,  or  some  two  of  them,  shall  take  order  by  their  best  dis- 
crecon,  that  they  may  be  ordered  &  ended  according  to  the  rule  of 
Gods  word,  &  to  take  care  for  all  millitary  affaires  till  the  nexte 
Gen /all  Court. 

Charter  of  the  Province  of  Massachusetts  Bay,  1691. 

And  we  doe  further  for  us  our  Heires  and  Successors  Give  and 
Grant  to  the  said  Governor  and  the  great  and  Generall  Court  of 
Assembly  -of  our  said  Province  or  Territory  for  the  time  being  full 
power  and  Authority  from  time  to  time  to  make  ordaine  and 
establish  all  manner  of  wholsome  and  reasonable  Orders  Laws 
Statutes  and  Ordinances  Directions  and  Instructions  either  with 
penalties  or  without  (soe  as  the  same  be  not  repugnant  or  contrary 
to  the  Lawes  of  this  our  Realme  of  England)  as  they  shall  Judge  to 
be  for  the  good  and  welfare  of  our  said  Province  or  Territory  And 
for  the  Gouernment  and  Ordering  thereof  and  of  the  People  In- 
habiting or  who  shall  Inhabit  the  same  and  for  the  necessary  sup- 
port and  Defence  of  the  Government  thereof. 

John  Adams,  Novanglus,  No.  VIII,  1774  (Adams,  Works,  IV, 
122). 
When  a  subject  left  the  kingdom  by  the  king's  permission,  and 
if  the  nation  did  not  remonstrate  against  it,  by  the  nation's  per- 
mission too,  at  least  connivance,  he  carried  with  him,  as  a  man,  all 
the  rights  of  nature.  His  allegiance  bound  him  to  the  king,  and 
entitled  him  to  protection.  But  how?  Not  in  France;  the  King  of 
England  was  not  bound  to  protect  him  in  France,  Nor  in  America. 
Nor  in  the  dominions  of  Louis.  Nor  of  Sassacus,  or  Massachusetts. 
He  had  a  right  to  protection  and  the  liberties  of  England,  upon 


RECEPTION  265 

his  return  there,  not  otherwise.  How,  then,  do  we  New  England- 
men  derive  our  laws?  I  say,  not  from  parliament,  not  from  com- 
mon law,  but  from  the  law  of  nature,  and  the  compact  made  with 
the  king  in  our  charters.  Our  ancestors  were  entitled  to  the  com- 
mon law  of  England  when  they  emigrated,  that  is,  to  just  so  much 
of  it  as  they  pleased  to  adopt,  and  no  more.  They  were  not  bound 
or  obliged  to  submit  to  it,  unless  they  chose  it. 

Declaration  of  Rights  of  the  Continental  Congress, 
1774. 
Whereupon  the  deputies  so  appointed  being  now  assembled  in 
a  full  and  free  representation  of  these  colonies,  taking  into  their 
most  serious  consideration  the  best  means  of  attaining  the  ends 
aforesaid,  do  in  the  first  place,  as  Englishmen,  their  ancestors,  in 
like  cases  have  usually  done,  for  asserting  and  vindicating  their 
rights  and  liberties,  declare.  .  .  . 

5.  That  the  respective  colonies  are  entitled  to  the  common  law 
of  England,  and  more  especially  to  the  great  and  inestimable  privi- 
lege of  being  tried  by  their  peers  of  the  vicinage,  according  to  the 
course  of  that  law. 

6.  That  they  are  entitled  to  the  benefit  of  such  of  the  English 
statutes  as  existed  at  the  time  of  their  colonization;  and  which 
they  have,  by  experience,  respectively  found  to  be  applicable  to 
their  several  local  and  other  circumstances. 

Note  by  Horace  Gray,  Quincy's  Reports,  538-9.^ 

Immediately  after  the  Province  Charter,  the  General  Court 
attempted  to  establish  a  Court  of  Chancery;  but  the  act  was  dis- 
allowed by  the  King  in  Council.  Prov.  Sts.  4  &  5  W.  &  M.  (1692- 
3)  Anc.  Chart.  222,  274.  Rec.  1699,  fol.  256.  2  Hutchinson's  Hist. 
Mass.  31.  4  Dane  Ab.  518.  6  Ih.  405.  Charles  River  Bridge  v. 
Warren  Bridge,  7  Pick.  368.  In  1704  Attorney  General  Northey 
gave  an  opinion  to  Queen  Anne  that  the  Province  Charter  conferred 
no  authority  on  the  General  Court  to  establish  such  a  court.  2 
Chalmers'  Opinions,  182,  183.  But  Ryder  and  Strange,  as  Attor- 
ney and  Solicitor  General,  in  1738  gave  an  opinion  that  the  colonial 
assembly  could  establish  a  Court  of  Exchequer  in  South  Carolina. 

1  As  to  Equity  in  America,  see  Select  Essays  in  Anglo-American  Legal  History, 
II,  779-823;  Loyd,  Early  Courts  of  Pennsylvania,  159-211;  Gager,  Equity,  in 
Two  Centuries'  Growth  of  American  Law,  115,  129-152. 


266  THE  COMMON  LAW  IN  AMERICA 

2  Ih.  170.  The  condition  of  Chancery  jurisdiction  in  the  Province 
of  Massachusetts  Bay  is  thus  expressed  in  "the  opinion  of  a  great 
lawver  in  the  Colonies,"  quoted  by  Governor  Pownall,  whose  term 
of  office  inter\'ened  between  the  decision  of  McNeal  v.  Brideoak, 
ubi  supra  11752],  and  the  argument  upon  the  Writs  of  Assistance 
[1761].  "There  is  no  Court  of  Chancery  in  the  charter  govern- 
ments of  New  England,  nor  any  court  vested  with  power  to  deter- 
mine causes  in  equit3^  sa\e  only  that  the  justices  of  the  inferior 
court  and  the  justices  of  the  superior  court  respectively  have  power 
to  gi\e  relief  on  mortgages,  bonds,  and  other  penalties  contained 
in  deeds.  In  all  other  chancery  and  equitable  matters,  both  the 
Crown  and  the  subject  are  without  redress.  This  introduced  a 
practice  of  petitioning  the  legislative  courts  for  relief,  and  prompted 
those  courts  to  interpose  their  authority.  These  petitions  becoming 
numerous,  in  order  to  give  the  greater  despatch  to  such  business, 
the  legislatixe  courts  transacted  such  business  by  orders  or  resolves, 
without  the  solemnity  of  passing  acts  for  such  purposes;  and  have 
further  extended  this  power  by  resolves  and  orders  beyond  what  a 
Court  of  Chancery  ever  attempted  to  decree,  even  to  the  suspending 
of  public  laws;  which  orders  or  resolves  are  not  sent  home  for  the 
royal  assent."  Administration  of  the  Colonies  (3d  ed.)  81,  82. 
The  jurisdiction  mentioned  by  Governor  Pownall  was  conferred 
by  Prov.  Sts.  10  W.  3;  12  Anne;  5  G.  1;  8  G.  2;  Anc.  Chart.  325, 
326,  401,  402,  424,  501.  And  see  4  Dane  Ab.  243;  6  Ih.  398; 
7  lb.  516,  518;  2  Amer.  Jurist,  361,  362;  Washburn's  Jud.  Hist. 
Mass.  158,  167.  Governor  Bernard,  in  his  answer  on  the  5th  of 
September,  1763,  to  the  "Queries  proposed  by  the  Lords  Com- 
missioners of  Trade  and  Plantations,"  for  a  copy  of  which,  taken 
from  the  MSS.  in  the  King's  Library,  the  writer  is  indebted  to  Mr. 
George  Bancroft,  says:  "It  might  have  been  made  a  question 
whether  the  Go\ernor  of  this  Province  has  not  the  power  of  Chan- 
cellor delivered  to  him  with  the  Great  Seal,  as  well  as  other  Royal 
Governors;  but  it  is  impracticable  to  set  up  such  a  claim  now, 
after  a  non-usage  of  70  years,  and  after  several  Go\'ernors  have,  in 
efifect,  disclaimed  it,  by  consenting  to  bills  for  establishing  a  Court 
of  Chancery,  which  have  been  disallowed  at  home.  A  Court  of 
Chancery  is  very  much  wanted  here,  many  causes  of  consequence 
frequently  happening,  in  which  no  redress  is  to  be  had  for  want  of 
a  Court  of  Equity.  I  am  inclined  to  think  that  if  a  complainant 
in  a  matter  of  equity  arising  within  this  Province  should  file  his 
bill  in  the  Court  of  Chancery  in  England,  suggesting  there  was 


RECEPTION  267 

no  Provincial  Court  in  which  he  could  be  relieved,  that  the  bill 
would  be  retained,  in  the  same  manner  as  I  suppose  a  libel  in  the 
high  Court  of  Admiralty  would  be  admitted,  if  there  was  no  inferior 
court  of  Admiralty  in  the  Province,  unless  it  was  used  only  to  enforce 
the  necessity  of  establishing  a  Provincial  Court  of  Equity." 

Wharton  v.  Morris,  Supreme  Court  of  Pennsylvania, 
1785  (1  Dall.  125).  • 
M'Kean,  Chief  Justice,  delivered  a  circumstantial  and  learned 
charge  to  the  Jury.  He  said,  that  the  want  of  a  Court  with  equi- 
table powers,  like  those  of  the  Chancery  in  England,  had  long  been 
felt  in  Pennsylvania.  The  institution  of  such  a  Court,  he  observed, 
had  once  been  agitated  here;  but  the  houses  of  Assembly,  ante- 
cedent to  the  revolution,  successfully  opposed  it;  because  they 
were  apprehensive  of  encreasing,  by  that  means,  the  power  and 
influence  of  the  Governor,  who  claimed  it  as  a  right  to  be  Chan- 
cellor. For  this  reason,  many  inconveniences  have  been  suffered. 
No  adequate  remedy  is  provided  for  a  breach  of  trust;  no  relief  can 
be  obtained  in  cases  of  covenants  with  a  penalty,  etc.  This  defect 
of  jurisdiction  has  necessarily  obliged  the  Court  upon  such  occa- 
sions, to  refer  the  question  to  the  Jury,  under  an  equitable  and 
conscientious  interpretation  of  the  agreement  of  the  parties;  and 
it  is  upon  that  ground,  the  Jury  must  consider  and  decide  the 
present  case. 

Story,  Commentaries  on  the  Constitution  of  the  United 
States,  §§  147-152,  156,  157. 

§  147.  Plantations  or  colonies  in  distant  countries  are  either 
such  as  are  acquired  by  occupying  and  peopling  desert  and  unculti- 
vated regions  by  emigrations  from  the  mother  country,  or  such  as, 
being  already  cultivated  and  organized,  are  acquired  by  conquest 
or  cession  under  treaties.  There  is,  however,  a  difference  between 
these  two  species  of  colonies  in  respect  to  the  laws  by  which  they 
are  governed,  at  least  according  to  the  jurisprudence  of  the  common 
law.  If  an  uninhabited  country  is  discovered  and  planted  by 
British  subjects,  the  English  laws  are  said  to  be  immediately  in 
force  there;  for  the  law  is  the  birthright  of  every  subject.  So  that 
wherever  they  go  they  carry  their  laws  with  them;  and  the  new- 
found country  is  governed  by  them. 

§  148.  This  proposition,  however,  though  laid  down  in  such 
general  terms  by  very  high  authority,  requires  many  limitations, 


268  THE  COMMON  LAW  IN  AMERICA 

and  is  to  be  understood  with  many  restrictions.  Such  colonists  do 
not  carry  with  them  the  whole  body  of  the  English  laws,  as  they 
then  exist;  for  many  of  them  must,  from  the  nature  of  the  case, 
be  wholly  inapplicable  to  their  situation,  and  inconsistent  with 
their  comfort  and  prosperity.  There  is,  therefore,  this  necessary 
limitation  implied,  that  they  carry  with  them  all  the  laws  applicable 
to  their  situation,  and  not  repugnant  to  the  local  and  political 
circumstances  in  which  they  are  placed.- 

§  149.  Even  as  thus  stated,  the  proposition  is  full  of  vagueness 
and  perplexity;  for  it  must  still  remain  a  question  of  intrinsic 
difficulty  to  say  what  laws  are  or  are  not  applicable  to  their  situa- 
tion ;  and  whether  they  are  bound  by  a  present  state  of  things,  or 
are  at  liberty  to  apply  the  laws  in  future  by  adoption,  as  the  growth 
or  interests  of  the  colony  may  dictate.  The  English  rules  of 
inheritance,  and  of  protection  from  personal  injuries,  the  rights 
secured  by  Magna  Charta,  and  the  remedial  course  in  the  adminis- 
tration of  justice,  are  examples  as  clear  perhaps  as  any  which  can 
be  stated  as  presumptively  adopted,  or  applicable.  And  yet  in 
the  infancy  of  a  colony  some  of  these  very  rights  and  pri\-ileges 
and  remedies  and  rules  may  be  in  fact  inapplicable,  or  inconvenient 
and  impolitic.  It  is  not  perhaps  easy  to  settle  what  parts  of  the 
English  laws  are  or  are  not  in  force  in  any  such  colony,  until  either 
by  usage  or  judicial  determination  they  have  been  recognized  as 
of  absolute  force. 

§  150.  In  respect  to  conquered  and  ceded  countries,  which  have 
already  laws  of  their  own,  a  different  rule  prevails.  In  such  cases 
the  crown  has  a  right  to  abrogate  the  former  laws  and  institute 
new  ones.  But  until  such  new  laws  are  promulgated,  the  old  laws 
and  customs  of  the  country  remain  in  full  force,  unless  so  far  as 
they  are  contrary  to  our  religion,  or  enact  anything  that  is  malum 
in  se;  for  in  all  such  places  the  laws  of  the  conquering  or  acquiring 
country  shall  prevail.  This  qualification  of  the  rule  arises  from 
the  presumption  that  the  crown  could  never  intend  to  sanction 
laws  contrary  to  religion  or  sound  morals.  But  although  the 
king  has  thus  the  power  to  change  the  laws  of  ceded  and  conquered 
countries,  the  power  is  not  unlimited.  His  legislation  is  sub- 
ordinate to  the  authority  of  Parliament.  He  cannot  make  any 
new  change  contrary  to  fundamental  principles;  he  cannot  exempt 
an  inhabitant  from  that  particular  dominion,  as  for  instance  from 
the  laws  of  trade,  or  from  the  power  of  Parliament ;  and  he  cannot 
give  him  privileges  exclusive  of  other  subjects. 


RECEPTION  269 

§  151.  Mr.  Justice  Blackstone,  in  his  Commentaries,  insists 
that  the  American  colonies  are  principally  to  be  deemed  conquered, 
or  ceded  countries.  His  language  is,  "Our  American  plantations 
are  principally  of  this  latter  sort  [that  is  ceded  or  conquered  coun- 
tries], being  obtained  in  the  last  century  either  by  right  of  con- 
quest and  driving  out  the  natives  (with  what  natural  justice  I 
shall  not  at  present  inquire),  or  by  treaties.  And,  therefore,  the 
common  law  of  England,  as  such,  has  no  allowance  or  authority 
there;  they  being  no  part  of  the  mother  country,  but  distinct, 
though  dependent  dominions." 

§  152.  There  is  great  reason  to  doubt  the  accuracy  of  this 
statement  in  a  legal  view. 

§  156.  The  doctrine  of  Mr.  Justice  Blackstone,  therefore,  may 
well  admit  of  serious  doubt  upon  general  principles.  But  it  is- 
manifestly  erroneous,  so  far  as  it  is  applied  to  the  colonies  and 
plantations  composing'  our  Union.  In  the  charters  under  which 
all  these  colonies  were  settled,  w^ith  a  single  exception,  there  is, 
as  has  been  already  seen,  an  express  declaration  that  all  subjects 
and  their  children  inhabiting  therein  shall  be  deemed  natural-born 
subjects,  and  shall  enjoy  all  the  privileges  and  immunities  thereof. 
There  is  also  in  all  of  them  an  express  restriction  that  no  laws  shall 
be  made  repugnant  to  those  of  England,  or  that,  as  near  as  may 
be  conveniently,  they  shall  be  consonant  with  and  conformable 
thereto;  and  either  expressly  or  by  necessary  implication  it  is 
provided  that  the  laws  of  England,  so  far  as  applicable,  shall  be  in 
force  there.  Now  this  declaration,  even  if  the  crown  previously 
possessed  a  right  to  establish  what  laws  it  pleased  over  the  terri- 
tory, as  a  conquest  from  the  natives,  being  a  fundamental  rule  of 
the  original  settlement  of  the  colonies,  and  before  the  emigrations 
thither,  was  conclusive,  and  could  not  afterwards  be  abrogated 
by  the  crown.  It  was  an  irrevocable  annexation  of  the  colonies 
to  the  mother  country,  as  dependencies  governed  by  the  same  laws 
and  entitled  to  the  same  rights. 

§  157.  And  so  has  been  the  uniform  doctrine  in  America  ever 
since  the  settlement  of  the  colonies.  The  universal  principle  (and 
the  practice  has  conformed  to  it)  has  been,  that  the  common  law 
is  our  birthright  and  inheritance,  and  that  our  ancestors  brought 
hither  with  them,  upon  their  emigration,  all  of  it  which  was  appli- 
cable to  their  situation.  The  whole  structure  of  our  present  juris- 
prudence stands  upon  the  original  foundations  of  the  common  law. 


270  THE  COMMON  LAW  IN  AMERICA 

2.     SOURCES  AND  FORMS 

Kent,  Commentaries,  I,  472. 

The  common  law,  so  far  as  it  is  applicable  to  our  situation  and 
government,  has  been  recognized  and  adopted,  as  one  entire  system, 
by  the  constitutions  of  Massachusetts,  New  York,  New  Jersey,  and 
Maryland.  It  has  been  assumed  by  the  courts  of  justice,  or  de- 
clared by  statute,  with  the  like  modifications,  as  the  law  of  the  land 
in  every  state.  It  was  imported  by  our  colonial  ancestors,  as  far  as 
it  was  applicable,  and  was  sanctioned  by  royal  charters  and  colonial 
statutes.  It  is  also  the  established  doctrine,  that  English  statutes, 
passed  before  the  emigration  of  our  ancestors,  and  applicable  to  our 
situation,  and  in  amendment  of  the  law,  constitute  a  part  of  the 
common  law  of  this  country. 

The  best  evidence  of  the  common  law  is  to  be  found  in  the  de- 
cisions  of  the  courts  of  justice,  contained  in  numerous  volumes  of 
reports,  and  in  the  treatises  and  digests  of  learned  men,  which  ha\'e 
been  multiplying  from  the  earliest  periods  of  the  English  history 
down  to  the  present  time.  The  reports  of  judicial  decisions  con- 
tain the  most  certain  evidence,  and  the  most  authoritative  and  pre- 
cise application  of  the  rules  of  the  common  law.  Adjudged  cases 
become  precedents  for  future  cases  resting  upon  analogous  facts, 
and  brought  within  the  same  reason;  and  the  diligence  of  counsel, 
and  the  labor  of  judges,  are  constantly  required,  in  the  study  of  the 
reports,  in  order  to  understand  accurately  their  import,  and  the 
principles  they  establish.  But  to  attain  a  competent  knowledge  of 
the  common  law  in  all  its  branches  has  now  become  a  very  serious 
undertaking,  and  it  recjuires  steady  and  lasting  perseverance,  in 
consequence  of  the  number  of  books  which  beset  and  encumber  the 
path  of  the  student. 

Williams  v.  Miles,  Supreme  Court  of  Nebraska,  1903  (68 
Neb.  463,  470). 
Pound,  C:  What  is  the  meaning  of  the  term  "common  law  of 
England,"  as  used  in  chapter  15a,  Comp.  St.  1901?  Does  it  mean 
the  common  law  as  it  stood  at  the  time  of  the  Declaration  of  Inde- 
pendence, or  as  it  stood  when  our  statute  was  enacted,  or  are  we 
to  understand  the  common-law  system,  in  its  entirety,  including  all 
judicial  improvements  and  modifications  in  this  country  and  in  Eng- 
land, to  the  present  time,  so  far  as  applicable  to  our  conditions?  We 
cannot  think,  and  we  do  not  believe  this  court  has  ever  understood, 


SOURCES  AND  FORMS  271 

that  the  Legislature  intended  to  petrify  the  common  law,  as  em- 
bodied in  judicial  decisions  at  any  one  time,  and  set  it  up  in  such 
inflexible  form  as  a  rule  of  decision.  The  theory  of  our  system  is 
that  the  law  consists,  not  in  the  actual  rules  enforced  by  decisions 
of  the  courts  at  any  one  time,  but  the  principles  from  which  those 
rules  flow;  that  old  principles  are  applied  to  new  cases,  and  the 
rules  resulting  from  such  application  are  modified  from  time  to 
time  as  changed  conditions  and  new  states  of  fact  require.  Rens- 
selaer Glass  Factory  v.  Reid,  5  Cow.  587.  "We  may  look  to  Ameri- 
can as  well  as  English  books  and  to  American  as  well  as  English 
jurists,  to  ascertain  what  this  law  is,  for  neither  the  opinions  nor 
precedents  of  judges  can  be  said,  with  strict  propriety,  to  be  the 
law.  They  are  only  evidence  of  law."  Forbes  v.  Scannell,  13  Cal. 
242,  286.  On  this  ground  it  was  held  in  Sayward  v.  Carlson,  1 
Wash.  St.  29,  23  Pac.  830,  that  a  statutory  provision  in  Washing- 
ton making  the  common  law  of  England  the  rule  of  decision  in  all 
courts  did  not  confine  the  courts  to  the  decisions  of  the  English 
courts,  and  of  those  American  courts  which  have  followed  them 
closely,  for  the  interpretation  of  the  law.  Such  has  been  the  under- 
standing of  this  court  from  the  beginning.  What  Sir  Frederick 
Pollock  has  called  "the  immemorial  and  yet  freshly  growing  fabric 
of  the  common  law"  is  to  be  our  guide,  not  the  decisions  of  any 
particular  courts  at  any  particular  period.  The  term  "common 
law  of  England,"  as  used  in  the  statute,  refers  to  that  general 
system  of  law  which  prevails  in  England,  and  in  most  of  the  United 
States  by  derivation  from  England,  as  distinguished  from  the 
Roman  or  civil  law  system,  which  was  in  force  in  this  territory  prior 
to  the  Louisiana  purchase.  Hence  the  statute  does  not  require 
adherence  to  the  decisions  of  the  English  common-law  courts  prior 
to  the  Revolution,  in  case  this  court  considers  subsequent  decisions, 
either  in  England  or  America,  better  expositions  of  the  general 
principles  of  that  system.^ 

Van  Ness  v.  Pacard,  Supreme  Court  of  the  United  States, 
1829  (2  Pet.  137). 
Story,  J.:  .  .  .  The  common  law  of  England  is  not  to  be  taken 
in  all  respects  to  be  that  of  America.  Our  ancestors  brought  with 
them  its  general  principles,  and  claimed  it  as  their  birthright:  but 
they  brought  w^ith  them  and  adopted  only  that  portion  which  was 

1  See  Pope,  English  Common  Law  in  the  United  States,  24  Harv.  Law  Rev.  6. 


272  THE  COMMON  LAW  IN  AMERICA 

applicable  to  their  situation.  There  could  be  little  or  no  reason  for 
doubting  that  the  general  doctrine  as  to  things  annexed  to  the  free- 
hold, so  far  as  it  respects  heirs  and  executors,  was  adopted  b\^  them. 
The  question  could  arise  only  between  different  claimants  under  the 
same  ancestor,  and  no  general  policy  could  be  subser\ed  by  with- 
drawing from  the  heir  those  things  which  his  ancestor  had  chosen 
to  leave  annexed  to  the  inheritance.  But  between  landlord  and 
tenant  it  is  not  so  clear  that  the  rigid  rule  of  the  common  law,  at 
least  as  it  is  expounded  in  3  East,  38,  was  so  applicable  to  their 
situation  as  to  gi\e  rise  to  necessary  presumption  in  its  fa\or.  The 
country  was  a  wilderness^  and  the  universal  policy  was  to  procure 
its  cultivation  and  improvement.  The  owner  of  the  soil  as  well  as 
the  public  had  e\ery  moti\e  to  encourage  the  tenant  to  devote  him- 
self to  agriculture  and  to  favor  any  erection  w'hich  should  aid  this 
result;  yet,  in  the  comparative  poverty  of  the  country,  what  tenant 
could  afford  to  erect  fixtures  of  much  expense  or  value,  if  he  was  to 
lose  his  whole  interest  therein,  by  the  very  act  of  erection?  His 
cabin  or  log  hut,  however  necessary  for  any  improvement  of  the 
soil,  would  cease  to  be  his  the  moment  it  was  finished.  It  might, 
therefore,  deserve  consideration  whether,  in  case  the  doctrine  were 
not  previously  adopted  in  a  state  by  some  authoritative  practice  or 
adjudication,  it  ought  to  be  assumed  by  this  court  as  a  part  of 
the  jurisprudence  of  such  state,  upon  the  mere  footing  of  its  existence 
in  the  common  law.  At  present  it  is  unnecessary  to  say  more  than 
that  we  gi\e  no  opinion  on  this  question.  The  case  which  has  been 
argued  at  the  bar  may  well  be  disposed  of  without  any  discussion 
of  it. 

Meng  v.  Coffee,  Supreme  Court  of  Nebraska,  1903  (67  Neb. 
500,  507). 
Pound,  C:  ...  Not  only  should  the  inapplicability  of  a  com- 
mon-law rule  be  general,  extending  to  the  whole,  or  the  greater 
part  of  the  state,  or  at  least  to  an  area  capable  of  definite  judicial 
ascertainment,  to  justify  the  courts  in  disregarding  such  rule,  but 
we  think,  in  view  of  the  ease  with  which  legislatixe  alteration  and 
amendment  may  be  had,  the  power  to  declare  established  doctrines 
of  the  common  law  inapplicable  should  be  used  somewhat  spar- 
ingly. In  the  whole  course  of  decisions  in  Nebraska,  from  the  terri- 
torial courts  to  the  present,  this  power  has  been  exercised  but  three 
times:  (1)  With  reference  to  trespass  upon  wild  lands  by  cattle 
(Delaney  v.  Errickson,  10  Neb.  492,  6  N.  W.  600,  35  Am.  Rep. 


SOURCES  AND  FORMS  273 

487),  restricted,  however,  to  wild  lands  by  later  adjudications  {Lor- 
ance  v.  Hillyer,  b1  Neb.  266,  77  N.  W.  755);  (2)  with  reference  to 
the  effect  of  covenants  to  pay  rent  in  a  lease  after  destruction  of 
leased  buildings,  dissented  from,  however,  by  three  of  the  six  judges 
{Wattles  V.  South  Omaha  Ice  &  Coal  Co.,  50  Neb.  251,  69  N.  W. 
785,  36  L.  R.  A.  424,  61  Am.  St.  Rep.  554) ;  and  (3)  with  reference 
to  estates  by  entirety  (Kerner  v.  McDonald,  84  N.  W.  92,  83  Am. 
St.  Rep.  550).  Of  these  three  cases  it  may  be  remarked  that  the 
first  was  in  line  with  legislation  which  clearly  ran  counter  to  the 
common-law  rule,  and  that  the  other  two  dealt  with  strict  feudal 
rules  of  property,  based  on  conceptions  long  since  become  obsolete. 
The  recent  holdings  as  to  the  statute  of  uses  (Farmers'  &"  Merchants^ 
Ins.  Co.  V.  Jensen,  58  Neb.  522,  78  N.  W.  1054,  44  L.  R.  A.  861) 
and  the  statute  of  Elizabeth  concerning  charitable  uses  {In  re 
Creighton's  Estate  (Neb.)  84  N.  W.  273),  are  of  different  nature. 
In  the  statute  of  uses  the  court  did  not  have  to  do  with  a  rule  of  the 
common  law,  but  with  an  English  statute,  which  was  not  adjustable 
to  our  legislation  as  to  conveyances.  In  the  statute  of  Elizabeth 
relating  to  charitable  uses  the  court  was  again  dealing  with  an  Eng- 
lish statute,  and  as  that  statute  gave  extrajudicial  powers  to  the 
courts,  which  they  could  not  exercise  under  our  constitution,  the 
question  was  one  of  legislative  superseding  of  the  rule,  not  of 
inapplicability.  Thus  the  distinction  between  the  case  at  bar  and 
those  in  which  common-law  rules  or  English  statutes  have  been  set 
aside  is  readily  apparent.  Here  we  are  confronted  with  no  legisla- 
tion to  the  contrary,  nor  are  we  dealing  with  an  antiquated  rule  of 
feudal  origin,  but  with  an  enlightened  system  of  rules,  founded  on 
obvious  principles  of  justice,  and  concededly  applicable  to  the  gen- 
eral conditions  of  the  country  and  to  the  greater  part  of  this  state. 
Moreover,  in  each  of  the  three  cases  in  which  common-law  rules 
have  been  held  inapplicable,  there  was  a  complete  rule  at  hand  to 
take  the  place  of  the  one  rejected,  and  no  complicated  and  exten- 
sive judicial  legislation  was  required.  In  the  case  of  trespasses 
by  cattle,  the  herd  law  was  on  the  statute  books.  The  rule  as  to 
the  effect  of  covenants  in  a  lease  to  pay  rent  was  an  isolated  rule 
without  collateral  consequences,  and  the  obvious  and  well-settled 
principle  of  apportionment  governing  all  agreements  was  available 
in  its  stead ;  and  the  doctrine  of  tenancy  by  the  entirety  stood  alone, 
unconnected  v/ith  any  general  body  of  rules,  and  all  cases  that  might 
have  been  governed  by  it  were  readily  referable  to  the  rules  govern- 
ing tenancy  in  common.     In  like  manner,  with  the  statute  of  uses 


274  THE  COMMON  LAW  IN  AMERICA 

removed,  we  had  a  complete  statutory  system  of  conveyancing, 
and  in  the  absence  of  the  statute  of  charitable  uses,  there  were  still 
the  general  equitable  powers  of  the  court  of  chancery  existing 
anterior  to  that  statute.  But  while  in  those  cases  a  single  rule, 
part  of  no  general  system  of  modern  application,  was  rejected, 
here  the  rules  assailed  are  results  of  a  general  doctrine  and  part  of 
a  complete  system,  and  to  overthrow  them  would  leave  the  whole 
body  of  the  law  of  waters  unsettled  and  confused.  The  subject 
calls  for  legislative,  not  for  judicial,  action. 

Powell  v.  Brandon,  Supreme  Court  of  Mississippi,  1852 
(24  Miss.  343,  362). 
Yerger,  J.:  The  argument  has  frequently  been  urged,  by  those 
who  assign  a  feudal  origin  to  the  rule,  that  inasmuch  as  the  feudal 
system  has  been  abolished,  the  reason  for  the  rule  has  ceased ;  and, 
therefore,  the  rule  itself  should  be  abrogated.  However  cogent 
this  argument  may  be  when  addressed  to  the  legislature,  yet  courts 
of  justice  cannot  so  far  recognise  its  potency  as  to  make  it  the  basis 
of  their  decisions.  Whenever  a  principle  of  the  common  law  has 
been  once  clearly  and  unquestionably  recognized  and  established, 
the  courts  of  the  country  must  enforce  it,  until  it  be  repealed  by 
the  legislature,  as  long  as  there  is  a  subject-matter  for  the  principle 
to  operate  upon;  and  this,  too,  although  the  reason,  in  the  opinion 
of  the  court,  which  induced  its  origimil  establishment,  may  have 
ceased  to  exist.  This  we  conceive  to  be  the  established  doctrine  of 
the  courts  of  this  country,  in  every  State  where  the  principles  of 
the  common  law  prevail.  Were  it  otherwise,  the  rules  of  law  would 
be  as  fluctuating  and  unsettled  as  the  opinions  of  the  different  judges 
administering  them  might  happen  to  differ  in  relation  to  the  exist- 
ence of  sufficient  and  valid  reasons  for  maintaining  and  upholding 
them.  Whatever  may  have  been  the  original  reason  for  the  com- 
mon law  rule,  that  a  legal  title  to  real  estate  can  only  be  conveyed  by 
deed  sealed  and  delivered,  or  whatever  reason  may  have  existed 
originally  for  the  distinction  between  sealed  ajid  unsealed  instru- 
ments and  contracts,  it  would  be  difhcult  to  assign  any  other  at  this 
day  .for  their  maintenance,  than  the  fact  that  they  are  long  and  well 
settled  rules  of  the  common  law.  The  same  remark  may  be  predi- 
cated of  many  other  fixed  and  positive  regulations  of  the  common 
law,  whose  validity  no  one  disputes  or  controverts.  And  hence  it  is, 
that  the  courts  of  e\'cry  State  in  the  Union,  where  the  common  law 
constitutes  a   part   of   their   judicial    system,    go\erned    by   such 


SOURCES  AND  FORMS  275 

considerations,  have  declared  the  existence  of  the  rule  in  Shelley's 
case,  and  have  enforced  it  as  rigorously  as  any  other  well  settled 
principle  of  that  law;  and  we  are  of  opinion,  that  in  common  with 
the  other  principles  of  the  common  law,  that  rule  constitutes  a 
part  of  the  judicial  system  of  this  State,  and  must  be  enforced, 
unless  it  has  been  repealed  by  some  statutory  provision. 

ViDAL    V.    GiRARD,    SUPREME    CoURT    OF    THE    UNITED    STATES, 

1844  (2  How.  127). 
Story,  J.:  .  .  .  It  is  also  said,  and  truly,  that  the  Christian 
religion  is  a  part  of  the  common  law  of  Pennsylvania.  But  this 
proposition  is  to  be  received  with  its  appropriate  qualifications,  and 
in  connection  with  the  bill  of  rights  of  that  State,  as  found  in  its 
Constitution  of  Government.  The  Constitution  of  1790  (and  the 
like  provision  will,  in  substance,  be  found  in  the  Constitution  of 
1776,  and  in  the  existing  Constitution  of  1838)  expressly  declares, 
"That  all  men  have  a  natural  and  indefeasible  right  to  worship 
Almighty  God  according  to  the  dictates  of  their  own  consciences; 
no  man  can  of  right  be  compelled  to  attend,  erect,  or  support  any 
place  of  worship,  or  to  maintain  any  ministry  against  his  consent; 
no  human  authority  can,  in  any  case  whatever,  control  or  interfere 
with  the  rights  of  conscience ;  and  no  preference  shall  ever  be  given 
by  law  to  any  religious  establishments  or  modes  of  worship."  Lan- 
guage more  comprehensive  for  the  complete  protection  of  every 
variety  of  religious  opinion  could  scarcely  be  used ;  and  it  must  have 
been  intended  to  extend  equally  to  all  sects,  whether  they  believed 
in  Christianity  or  not,  and  whether  they  were  Jews  or  infidels.  So 
that  we  are  compelled  to  admit  that  although  Christianity  be  a  part 
of  the  common  law  of  the  State,  yet  it  is  so  in  this  qualified  sense, 
that  its  divine  origin  and  truth  are  admitted,  and  therefore  it  is  not 
to  be  maliciously  and  openly  reviled  and  blasphemed  against,  to  the 
annoyance  of  believers  or  the  injury  of  the  public.  Such  was  the 
doctrine  of  the  Supreme  Court  of  Pennsylvania  in  Updegraff  v. 
The  Commonwealth  (11  Serg.  &  Rawle,  394). 

Bloom  v.  Richards,  Supreme  Court  of  Ohio,  1853  (2  Ohio 
St.  387). 
Thurman,  J.:  .  .  .  But  were  it  otherwdse,  were  such  a  contract 
void  by  the  common  law  of  England,  it  would  not  necessarily  follow 
that  it  is  void  in  Ohio.  The  English  common  law,  so  far  as  it  is 
reasonable  in  itself,  suitable  to  the  condition  and  business  of  our 


276  THE  COMMON  LAW  IN  AMERICA 

people,  and  consistent  with  the  letter  and  spirit  of  our  federal  and 
state  constitutions  and  statutes,  has  been  and  is  followed  by  our 
courts,  and  may  be  said  to  constitute  a  part  of  the  common  law  of 
Ohio.  But  wherever  it  has  been  found  wanting  in  either  of  these 
requisites,  our  courts  have  not  hesitated  to  modify  it  to  suit  our 
circumstances,  or  if  necessary,  to  wholly  depart  from  it.  Lessee  of 
Lindsley  v.  Coates,  1  Ohio,  243;  O.  C.  116.  Christianity,  then, 
being  part  of  the  common  law  of  England,  there  was  some,  though 
an  insufficient,  foundation  for  the  saying  of  Chief  Justice  Best 
above  quoted.  But  the  Constitution  of  Ohio  having  declared  "that 
all  men  have  natural  and  indefeasible  right  to  worship  Almighty 
God  according  to  the  dictates  of  conscience ;  that  no  human  author- 
ity can,  in  any  case  whatever,  control  or  interfere  with  the  rights 
of  conscience;  that  no  man  shall  be  compelled  to  attend,  erect,  or 
support  any  place  of  worship,  or  to  maintain  any  ministry,  against 
his  consent;  and  that  no  preference  shall  ever  be  given,  by  law, 
to  any  religious  society,  or  mode  of  worship,  and  no  religious  test 
shall  be  required,  as  a  qualification  to  any  office  of  trust  or  profit," 
it  follows  that  neither  Christianity,  nor  any  other  system  of  religion. 
Is  a  part  of  the  law  of  this  state.  We  sometimes  hear  it  said  that 
all  religions  are  tolerated  in  Ohio;  but  the  expression  is  not  strictly 
accurate  • —  much  less  accurate  is  it  to  say,  that  one  religion  is  a 
part  of  our  law,  and  all  others  only  tolerated:  It  is  not  by  mere 
toleration  that  every  individual  here  is  protected  in  his  belief  or 
disbelief.  He  reposes  not  upon  the  leniency  of  government,  or 
the  liberality  of  any  class  or  sect  of  men,  but  upon  his  natural 
indefeasible  rights  of  conscience,  which,  in  the  language  of  the  con- 
stitution, are  beyond  the  control  or  interference  of  any  human 
authority.  W'e  have  no  union  of  church  and  state,  nor  has  our 
government  ever  been  vested  with  authority  to  enforce  any 
religious  observance,  simply  because  it  is  religious. 

Zeisweiss  v.  James,  Supreme  Court  of  Pennsylvania,  1870 
(63  Pa.  St.  465). 
The  will  in  question  contained  the  following  provision:  "Im- 
mediately after  the  death  of  both  my  said  grand-nieces,  then  it 
is  my  will  that  my  real  estate  aforesaid  shall  go  to  and  be  held 
in  fee  simple  by  the  Infidel  Society  In  Philadelphia,  hereafter 
to  be  incorporated,  and  to  be  held  and  disposed  of  by  them 
for  the  purpose  of  building  a  hall  for  the  free  discussion  of  religion, 
politics,  etc." 


SOURCES  AND  FORMS  277 

Sharswood,  J.  (after  holding  this  invalid  on  other  grounds) 
said:  In  placing  the  decision  on  this  ground,  however,  it  must  not 
be  understood  that  I  mean  to  concede  that  a  devise  for  such  a  pur- 
pose as  was  evidently  contemplated  by  this  testator,  even  if  a  com- 
petent trustee  had  been  named,  would  be  sustained  as  a  valid  chari- 
table use  in  this  state.  These  endowments  originated  in  England, 
at  a  period  when  the  religious  sentiment  was  strong,  and  their  tend- 
ency was  to  run  into  superstition.  In  modern  times  the  danger  is  of 
the  opposite  extreme  of  licentiousness.  It  is  necessary  that  they 
should  be  carefully  guarded  from  either,  and  preserved  in  that  happy 
mean  between  both,  which  will  most  conduce  to  the  true  interests 
of  society.  Established  principles  will  enable  the  courts  to 
accomplish  this.  Charity  is  love  to  God  and  love  to  our  neighbor ; 
the  fulfilment  of  the  two  great  commandments  upon  which  hang  all 
the  law  and  the  prophets.  The  most  invaluable  possessions  of  man 
are  faith,  hope,  charity,  these  three;  but  the  greatest  of  these  is 
charity.  Love  worketh  no  ill  to  his  neighbor :  therefore  love  is  the 
fulfilling  of  the  law.  It  is  the  fountain  and  source  whence  flow  all 
good  works  beneficial  to  the  souls  or  bodies  of  men.  It  is  not  easy 
to  see  how  these  are  to  be  promoted  by  the  dissemination  of  infidel- 
ity, which  robs  men  of  faith  and  hope,  if  not  of  charity  also.  It  is 
unnecessary  here  to  discuss  the  question,  under  what  limitations  the 
principle  is  to  be  admitted  that  Christianity  is  part  of  the  common 
law  of  Pennsylvania.  By  the  third  section  of  the  ninth  article  of 
the  Constitution  it  is  indeed  declared  "that  all  men  have  a  natural 
and  indefeasible  right  to  worship  Almighty  God  according  to  the 
dictates  of  their  own  consciences ;  that  no  man  can  of  right  be  com- 
pelled to  attend,  erect  or  support  any  place  of  worship,  or  to  main- 
tain any  ministry  against  his  consent;  no  human  authority  can,  in 
any  case  whatever,  control  or  interfere  with  the  rights  of  conscience ; 
and  no  preference  shall  ever  be  given  by  law  to  any  religious  estab- 
lishments or  modes  of  worship."  It  is  in  entire  consistency  with 
this  sacred  guarantee  of  the  rights  of  conscience  and  religious  lib- 
erty to  hold  that,  even  if  Christianity  is  no  part  of  the  law  of  the 
land,  it  is  the  popular  religion  of  the  country,  an  insult  to  which 
would  be  indictable  as  directly  tending  to  disturb  the  public  peace. 
The  laws  and  institutions  of  this  state  are  built  on  the  foundation  of 
reverence  for  Christianity.  To  this  extent,  at  least,  it  must  certainly 
be  considered  as  well  settled  that  the  religion  revealed  in  the  Bible 
is  not  to  be  openly  reviled,  ridiculed  or  blasphemed  to  the  annoyance 
of  sincere  believers  who  compose  the  great  mass  of  the  good  people 


278  THE  COAIMOX  LAW  IX  AMERICA 

of  the  Commonwealth:  Updegraph  v.  The  Commonwealth,  11  S. 
&  R.  394;  Vidal  v.  Girard's  Exectitors,  2  Howard  (U.  S.)  198.  I 
can  conceive  of  nothing  so  likely  —  so  sure,  indeed,  to  produce  these 
consequences,  as  a  hall  desecrated  in  perpetuity  for  the  free  discus- 
sion of  religion,  politics,  et  cetera,  under  the  direction  and  admin- 
istration of  a  society  of  infidels.  Indeed,  I  would  go  further,  and 
adopt  the  sentiment  and  language  of  Mr.  Justice  Duncan  in  the 
case  just  referred  to:  "It  would  prove  a  nursery  of  vice,  a  school 
of  preparation  to  qualify  young  men  for  the  gallows  and  young 
women  for  the  brothel,  and  there  is  not  a  sceptic  of  decent 
manners  and  good  morals  who  would  not  consider  such  a  de- 
bating club  as  a  common  nuisance  and  disgrace  to  the  city." 
Judgment  affirmed. 

Blackstone,  Commentaries,  I,  82. 

The  canon  law  is  a  body  of  Roman  ecclesiastical  law,  relative  to 
such  matters  as  that  church  either  has,  or  pretends  to  have,  the 
proper  jurisdiction  over.  This  is  compiled  from  the  opinions  of  the 
ancient  Latin  fathers,  the  decrees  of  general  councils,  and  the  de- 
cretal epistles  and  bulls  of  the  holy  see;  all  which  lay  in  the  same 
disorder  and  confusion  as  the  Roman  civil  law,  till,  about  the  year 
1151,  one  Gratian,  an  Italian  monk,  animated  by  the  discovery  of 
Justinian's  pandects,  reduced  the  ecclesiastical  constitutions  also 
into  some  method,  in  three  books,  which  he  entitled  Concordia  Dis- 
cordantium  Canomun,  but  which  are  generally  known  by  the  name 
of  Decretum  Gratiani.  These  reached  as  low  as  the  time  of  pope 
Alexander  III.  The  subsequent  papal  decrees,  to  the  pontificate  of 
Gregory  IX.,  were  published  in  much  the  same  method,  under  the 
auspices  ot  that  pope,  about  the  year  1230,  in  five  books,  entitled 
Decretaha  Gregorii  Noni.  A  sixth  book  was  added  by  Boniface 
VIII.  about  the  year  1298,  which  is  called  Sextiis  Decretalium. 
The  Clementine  constitutions,  or  decrees  of  Clement  V.,  were  in 
like  manner  authenticated  in  1317,  by  his  successor  John  XXII., 
who  also  published  twenty  constitutions  of  his  own,  called  the 
Extravagantes  Joannis,  all  which  in  some  measure  answer  to  the 
novels  of  the  civil  law.  To  these  have  been  since  added  some  de- 
crees of  later  popes,  in  five  books,  called  Extravagantes  Communes: 
and  all  these  together,  Gratian's  decree,  Gregory's  decretals,  the 
sixth  decretal,  the  Clementine  constitutions,  and  the  extravagants 
of  John  and  his  successors,  form  the  corpus  juris  canonici,  or  body  of 
the  Roman  canon  law. 


SOURCES  AND  FORMS  279 

Besides  these  pontifical  collections,  which,  during  the  times  of 
popery,  were  received  as  authentic  in  this  island,  as  well  as  in 
other  parts  of  Christendom,  there  is  also  a  kind  of  national  canon 
law,  composed  of  legatine  and  provincial  constitutions,  and  adapted 
only  to  the  exigencies  of  this  church  and  kingdom.  The  legatine 
constitutions  were  ecclesiastical  laws,  enacted  in  national  synods 
held  under  the  cardinals  Otho  and  Othobon,  legates  from  pope 
Gregory  IX.  and  pope  Clement  IV.  in  the  reign  of  king  Henry  III., 
about  the  years  1220  and  1268.  The  provincial  constitutions  are 
principally  the  decrees  of  provincial  synods,  held  under  divers 
archbishops  of  Canterbury,  from  Stephen  Langton,  in  the  reign  of 
Henry  III.,  to  Henry  Chichele,  in  the  reign  of  Henry  V.;  and 
adopted  also  by  the  province  of  York  in  the  reign  of  Henry  VI. 
At  the  dawn  of  the  Reformation,  in  the  reign  of  King  Henry  VIII., 
it  was  enacted  in  parliament  that  a  review  should  be  had  of  the 
canon  law;  and  till  such  review  should  be  made,  all  canons,  con- 
stitutions, ordinances,  and  synodals  provincial,  being  then  already 
made,  and  not  repugnant  to  the  law  of  the  land  or  the  king's  pre- 
rogative, should  still  be  used  and  executed.  And,  as  no  such 
review  has  yet  been  perfected,  upon  this  statute  now  depends  the 
authority  of  the  canon  law  in  England. 

As  for  the  canons  enacted  by  the  clergy  under  James  I.  in  the 
year  1603,  and  never  confirmed  in  parliament,  it  has  been  solemnly 
adjudged  upon  the  principles  of  law  and  the  constitution,  that  where 
they  are  not  merely  declaratory  of  the  ancient  canon  law,  but  are 
introductory  of  new  regulations,  they  do  not  bind  the  laity,  what- 
ever regard  the  clergy  may  think  proper  to  pay  them. 

There  are  four  species  of  courts  in  which  the  civil  and  canon  laws 
are  permitted,  under  different  restrictions,  to  be  used:  .  1.  The 
courts  of  the  archbishops  and  bishops,  and  their  derivative  officers 
usually  called  in  our  law  courts  Christian,  curiae  Christianitatis,  or 
the  ecclesiastical  courts.  2.  The  military  courts.  3;  The  courts  of 
admiralty.  4.  The  courts  of  the  two  universities.  In  all,  their 
reception  in  general,  and  the  different  degrees  of  that  reception,  are 
grounded  entirely  upon  customs  corroborated  in  the  latter  instance 
by  act  of  parliament,  ratifying  those  charters  which  confirm  the 
customary  law  of  the  universities.  The  more  minute  consideration 
of  these  will  fall  properly  under  that  part  of  these  commentaries 
which  treats  of  the  jurisdiction  of  courts.  It  will  suffice  at  present 
to  remark  a  few  particulars  relative  to  them  all,  which  may  serve 
to  inculcate  more  strongly  the  doctrine  laid  down  concerning  them. 


280  THE  COMMON  LAW  IX  AMERICA 

1.  And,  first,  the  courts  of  common  law  have  the  superintendency 
over  these  courts;  to  keep  them  within  their  jurisdictions,  to 
determine  wherein  they  exceed  them,  to  restrain  and  prohibit  such 
excess,  and  in  case  of  contumacy,  to  punish  the  officer  who 
executes,  and  in  some  cases  the  judge  who  enforces,  the  sentence 
so  declared  to  be  illegal. 

2.  The  common  law  has  reserved  to  itself  the  exposition  of  all 
such  acts  of  parliament  as  concern  either  the  extent  of  these  courts, 
or  the  matters  depending  before  them.  And  therefore,  if  these 
courts  either  refuse  to  allow  these  acts  of  parliament,  or  will 
expound  them  in  any  other  sense  than  what  the  common  law  puts 
upon  them,  the  king's  courts  at  Westminster  will  grant  prohibitions 
to  restrain  and  control  them. 

3.  An  appeal  lies  from  all  these  courts  to  the  king,  in  the  last 
resort;  which  proves  that  the  jurisdiction  exercised  in  them  is 
derived  from  the  crown  of  England,  and  not  from  any  foreign 
potentate,  or  intrinsic  authority  of  their  own.  And,  from  these 
three  strong  marks  and  ensigns  of  superiority,  it  appears  beyond  a 
doubt  that  the  civil  and  canon  laws,  though  admitted  in  some  cases 
by  custom  in  some  courts,  are  only  subordinate,  and  leges  sub 
graviori  lege;  and  that,  thus  admitted,  restrained,  altered,  new- 
modelled,  and  amended,  they  are  by  no  means  with  us  a  distinct 
independent  species  of  laws,  but  are  inferior  branches  of  the  cus- 
tomary or  unwritten  laws  of  England,  properly  called  the  king's 
ecclesiastical,  the  king's  military,  the  king's  maritime,  or  the  king's 
academical  laws. 

Crump  v.  Morgan,  Supreme  Court  of  North  Carolina, 
1843  (3  Ired.  Eq.  91). 
Ruffin,  J.:  .  .  .  Again  it  was  said,  that  these  are  the  adjudi- 
cations of  the  ecclesiastical  courts,  and  are  founded,  not  on  the 
common  law,  but  on  the  canon  and  civil  laws,  and  therefore  not 
entitled  to  respect  here.  But  it  is  an  entire  mistake  to  say,  that  the 
canon  and  civil  laws,  as  administered  in  the  ecclesiastical  courts  of 
England,  are  not  parts  of  the  common  law.  Judge  Blackstone,  fol- 
lowing Lord  Hale,  classes  them  among  the  unwritten  laws  of  Eng- 
land and  as  parts  of  the  common  law,  which,  by  custom,  are  adopted 
and  used  in  peculiar  jurisdictions:  1  Bl.  Com.  79;  Hale's  Hist. 
Com.  L.  27,  32.  They  were  brought  here  by  our  ancestors  as  part 
of  the  common  law,  and  have  been  adopted  and  used  here  in  all 
cases  to  which  they  were  applicable,  and  whenever  there  has  been 


SOURCES  AND  FORMS  281 

a  tribunal  exercising  a  jurisdiction  to  call  for  their  use.  They 
govern  testamentary  causes  and  matrimonial  causes.  Probate  and 
reprobate  of  wills  stand  upon  the  same  grounds  here  as  in  Eng- 
land, unless  so  far  as  statutes  may  have  altered  it:  Dickinson  v. 
Stewart,  1  Murph.  99;  Ward  v.  Vickers,  2  Hayw.  (N.  C.)  164; 
Redmond  v.  Collins,  4  Dev.  430  (27  Am.  Dec.  208).  Divorce  causes 
fall  within  the  same  category. 

Le  Barron  v.  Le  Barron,  Supreme  Court  of  Vermont,  1862 
(35  Vt.  365). 

Poland,  Ch.  J.:  This  is  a  petition  by  the  wife  for  a  sentence  of 
nullity  of  marriage,  for  the  alleged  physical  impotence  of  the 
husband. 

At  the  last  stated  session  of  the  court  in  Washington  county  the 
petitioner  filed  a  motion  for  the  appointment  of  a  commissioner  or 
referee,  to  inquire  and  report  as  to  the  allegation  of  the  defendant's 
impotence,  and  that  the  defendant  be  required  to  answer  interroga- 
tories touching  said  allegation;  and  also  to  submit  to  a  personal  ex- 
amination by  medical  men,  under  the  superintendence  and  direction 
of  such  commissioner.  So  far  as  the  motion  prays  that  the  defend- 
ant be  compelled  to  answer  interrogatories,  or  to  be  examined  by 
physicians,  the  defendant  resists  it.  This  being  the  first  time  wathin 
our  knowledge  that  an  application  of  this  character  has  been  made 
in  this  state,  and  only  three  members  of  the  court  being  present,  it 
was  deemed  advisable  to  hold  the  matter  under  advisement  until  the 
present  term,  to  obtain  the  opinion  of  the  whole  court. 

The  objection  to  the  motion  is  based  upon  this  ground:  that  the 
whole  jurisdiction  and  power  of  the  court  over  the  subject  of  grant- 
ing divorces  and  annulling  marriages,  is  given  by  statute;  that  the 
court  has  no  power  except  such  as  the  statute  confers;  and  that,  as 
the  statute  does  not  give  the  court  the  power  to  require  such  an 
examination,  therefore  it  does  not  possess  it.  If  this  be  the  true 
view  of  the  jurisdiction  and  power  of  the  court  —  that  they  can 
only  exercise  such  powers  as  are  expressly  given  by  statute  —  then 
the  objection  of  the  defendant  must  be  sustained,  and  the  motion 
denied. 

To  enable  us  to  determine  this  question,  it  becomes  necessary 
to  examine  into  the  real  source  and  extent  of  the  jurisdiction  of  the 
court  over  this  subject. 

The  legal  power  to  annul  marriages  has  been  recognized  as  exist- 
ing in  England  from  a  very  early  period,  but  its  administration, 


282  THE  COMMON  LAW  IN  AMERICA 

instead  of  being  committed  to  the  common  law  courts,  was  exercised 
by  their  spiritual  or  ecclesiastical  courts.  Under  the  administration 
of  those  courts,  for  a  long  period  of  time,  the  principles  and  practice 
governing  this  head  of  their  jurisdiction,  ripened  into  a  settled 
course  and  body  of  jurisprudence,  like  that  of  the  courts  of  chan- 
cery and  admiralty,  and  constituted,  with  those  systems,  a  part  of 
the  general  law  of  the  realm,  and  in  the  broad  and  enlarged  use 
of  the  term,  a  part  of  the  common  law  of  the  land,  and  was  so  held 
by  the  courts  of  that  country. 

This  country  ha\dng  been  settled  by  colonies  from  that,  under  the 
general  authority  of  its  government,  and  remaining  for  many  years 
a  part  of  its  dominion,  became  and  remained  subject  and  entitled  to 
the  general  laws  of  the  government,  and  they  became  equally  the 
laws  of  this  country,  except  as  far  as  they  were  inapplicable  to  the 
new  relation  and  condition  of  things.  This  we  understand  to  be 
well  settled,  both  by  judicial  decision  and  the  authority  of  eminent 
law  writers.  But  if  this  were  not  so,  the  adoption  of  the  common 
law  of  England,  by  the  legislature  of  the  state,  was  an  adoption  of 
the  whole  body  of  the  law  of  that  country  (aside  from  their  parlia- 
mentary legislation,)  and  included  those  principles  of  law  admin- 
istered by  the  courts  of  chancery  and  admiralty,  and  the  ecclesi- 
astical courts,  (so  far  as  the  same  were  applicable  to  our  local  situa- 
tion and  circumstances,  and  not  repugnant  to  our  constitution  and 
laws)  as  well  as  that  portion  of  their  laws  administered  by  the 
ordinary  and  common  tribunals. 

As  the  jurisdiction  in  England  was  exclusively  committed  to  the 
spiritual  courts,  and  had  never  been  exercised  by  the  ordinary  law 
courts,  the  same  could  not  be  exercised  by  the  courts  of  law  in  this 
country,  until  it  was  vested  in  them  by  the  law-making  power.  As 
we  have  never  had  any  ecclesiastical  courts  in  this  country,  who 
could  execute  this  branch  of  the  law,  it  was  in  abeyance  until  some 
tribunal  was  properly  clothed  with  jurisdiction  over  it,  or  rested  in 
the  legislature.  It  was  probably  on  this  ground  that  tiie  legislatures 
of  the  states  proceeded  in  granting  divorces,  as  many  of  them  did, 
in  former  times.  When  the  legislatures  establish  a  tribunal  to  exer" 
cise  this  jurisdiction,  or  invest  it  in  any  of  the  already  established 
courts,  such  tribunal  becomes  entitled,  and  it  is  their  duty,  to  exer- 
cise it,  according  to  the  general  principles  of  the  common  law  of  the 
subject,  and  the  practice  of  the  English  courts,  so  far  as  they  are 
suited  to  our  condition  and  the  general  spirit  of  our  laws,  or  are 
modified  or  limited  by  our  ;  tatute. 


SOURCES  AND  FORMS  283 

Such  has  been  held  to  be  the  effect  of  a  creation  of  a  court  of 
chancery,  or  giving  equity  jurisdiction,  either  total  or  partial,  to  a 
court  of  law,  by  the  legislature.  Such  jurisdiction  is  to  be  exer- 
cised according  to  the  general  principles  and  practice  of  the  chan- 
cery courts  of  the  mother  country. 

The  uniform  and  settled  practice  in  the  ecclesiastical  courts  of 
England,  in  this  class  of  cases,  is  to  require  a  medical  examination, 
and  to  compel  the  party  to  submit  to  it,  if  he  will  not  do  so  volun- 
tarily. Norton  v.  Seton,  1  Eng.  Ecc.  Rep.  384;  Briggs  v.  Morgan, 
Id.  408.  In  the  last  case.  Lord  Stowell  states  the  reason  and 
foundation  of  the  rule:  "It  has  been  said  that  the  means  resorted 
to  for  proof  on  these  occasions,  are  offensive  to  natural  modesty; 
but  nature  has  provided  no  other  means,  and  we  must  be  under  the 
necessity  of  saying  that  all  relief  shall  be  denied,  or  of  applying  the 
means  within  our  power.  The  court  must  not  sacrifice  justice  to 
notions  of  delicacy  of  its  own." 


Upon  authority  and  reason,  we  are  clearly  satisfied  that  the  power 
exists  in  the  court  to  compel  such  examination,  although  the  statute 
does  not  provide  for  it. 


Nash  v,  Harrington,  Supreme  Court  of  Vermont,  1826 
(2  Aiken,  9). 
Hutchinson,  J.:  ...  We  are  driven,  then,  to  the  question, 
will  the  court  here  adopt  the  rules  of  the  law  merchant,  touching 
the  necessity  of  demand  upon  the  maker,  and  notice  back  to  the 
indorser,  in  order  to  charge  him,  as  the  same  are  known  in  Eng- 
land? The  court  see  no  reason  why  they  should  not,  where  the  cir- 
cumstances of  the  parties  do  not  render  them  inapplicable.  Where 
the  law  in  England  requires  notice  to  be  given  back  on  the  same  day, 
if  the  facilities  of  demand  and  notice  back  are  the  same  here, 
there  is  no  reason  why  the  rule  should  not  be  the  same.  The 
law  merchant  is  a  part  of  the  common  law  of  England,  and  as  such 
is  adopted  by  statute  here,  so  far  as  it  is  applicable  to  our  local 
situation  and  circumstances,  and  is  not  repugnant  to  the  constitu- 
tion, or  any  act  of  the  legislature  of  this  state.  And  so  far,  the  courts 
of  this  state  are  bound  to  recognize  it. 


284  THE  COMMON  LAW  IN  AMERICA 

The  Paquete  Habana,  Supreme  Court  of  the  United  States, 
1900  (175  U.  S.  677). 
Gray,  J.:  ...  International  law  is  part  of  our  law,  and  must 
be  ascertained  and  administered  by  the  courts  of  justice  of 
appropriate  j  urisdiction  as  often  as  questions  of  right  depending  upon 
it  are  duly  presented  for  their  determination.  For  this  purpose,  where 
there  is  no  treaty  and  no  controlling  executive  or  legislative  act  or 
judicial  decision,  resort  must  be  had  to  the  customs  and  usages  of 
civilized  nations,  and,  as  evidence  of  these,  to  the  works  of  jurists 
and  commentators  who  by  years  of  labor,  research,  and  experience 
have  made  themselves  peculiarly  well  acquainted  with  the  subjects 
of  which  they  treat.  Such  works  are  resorted  to  by  judicial 
tribunals,  not  for  the  speculations  of  their  authors  concerning 
what  the  law  ought  to  be,  but  for  trustworthy  evidence  of 
what  the  law  really  is.  Hilton  v.  Guyot,  159  U.  S.  113,  163,  164, 
214,215. 

Patterson  v.  Winn,  Supreme  Court  of  the  United  States, 
1831  (5  Pet.  233). 

Story,  J.:  ...  We  think  it  clear  that  by  the  common  law, 
as  held  for  a  long  period,  an  exemplification  of  a  public  grant  under 
the  great  seal  is  admissible  in  evidence  as  being  record  proof  of  as 
high  a  nature  as  the  original.  It  is  a  recognition  in  the  most 
solemn  form  by  the  government  itself  of  the  validity  of  its  own 
grant,  under  its  own  seal,  and  imports  absolute  verity  as  matter 
of  record. 

The  authorities  cited  at  the  bar  fully  sustain  this  doctrine. 
There  was,  in  former  times,  a  technical  distinction  existing  on  this 
subject  which  deserves  notice.  As  evidence,  such  exemplifications 
of  letters  patent  seem  to  have  been  generally  deemed  admissible. 
But  where,  in  pleading,  a  profert  was  made  of  the  letters  patent, 
there,  upon  the  principles  of  pleading,  the  original  under  the  great 
seal  was  required  to  be  produced :  for  a  profert  could  not  be  of  any 
copy  or  exemplification.  It  was  to  cure  this  difficulty  that  the 
statutes  of  3  Edw.  VI.,  ch.  4,  and  13  Eliz.,  ch.  6,  were  passed,  by 
which  patentees  and  all  claiming  under  them  were  enabled  to  make 
title  in  pleading  by  showing  forth  an  exemplification  of  the  letters 
patent,  as  if  the  original  were  pleaded  and  set  forth.  These  statutes 
being  passed  before  the  emigration  of  our  ancestors,  being  applicable 
to  our  situation,  and  in  amendment  of  the  law,  constitute  a  part  of 
our  common  law. 


SOURCES  AND  FORMS  285 

Spaulding  v.  Chicago  &  N.  W.  R.  Co.,  Supreme  Court  of 
Wisconsin,  1872  (30  Wis.  111). 

Dixon,  C.  J.:  That  the  statute  6  Anne,  c.  3,  6,  enacted  in  1707, 
with  the  interpretation  heretofore  supposed  to  have  been  given  to 
it  in  England  in  the  time  of  Blackstone  and  before,  is  in  force  as 
part  of  the  common  law  of  this  state,  was  assumed  by  this  court  in 
the  case  of  Kellogg  v.  The  Chicago  and  Northwestern  Railway 
Company,  26  Wis.  223,  267,  272.  As  will  be  seen  by  the  reference, 
the  words  of  that  statute,  "in  whose  house  or  chamber  any  fire  shall 
accidentally  begin,"  had  been  construed  as  if  the  statute  read,  "in 
whose  house  or  chamber  any  fire  shall  negligently  begin,"  thus 
exempting  from  liability,  as  Blackstone  says,  for  the  loss  or  damage 
sustained  by  others,  the  owner  or  occupant  through  whose  negli- 
gence or  through  the  negligence  or  carelessness  of  whose  servants 
the  fire  was  set,  his  own  loss  being  regarded  as  sufficient  punish- 
ment for  such  negligence.  That  statute,  with  the  construction  so 
said  to  have  been  put  upon  it  in  England,  at  and  long  before  the 
time  of  our  revolution,  has  no  doubt  generally  been  considered  as 
constituting  a  part  of  the  common  law  of  this  state  as  it  probably 
has  of  all  or  nearly  all  of  the  other  states  of  the  Union.  It 
was,  as  we  have  every  reason  to  think,  so  looked  upon  as  part  of 
the  law  of  the  colonies  before  the  revolution  and  during  the  period 
of  their  dependence  upon  the  laws  and  constitutions  of  Great 
Britain, 

But  with  respect  to  the  other  British  statute  upon  which  reliance 
is  placed  by  the  railway  company  here,  and  which  was  also  enacted 
before  the  revolution,  namely,  the  statute  14  Geo.  III.,  c.  78,  sec. 
86,  enacted  in  1774,  which  enlarged  the  operation  of  the  statute  of 
Anne,  by  declaring  "that  no  action,  suit  or  process  whatever,  shall 
be  had,  maintained  or  prosecuted  against  any  person  in  whose  house, 
chamber,  stable,  barn  or  other  building,  or  on  whose  estate  any  fire 
shall  after  the  said  twenty-fourth  day  of  June  accidentally  begin, 
nor  shall  any  recompense  be  made  by  such  person  for  any  damage 
suffered  thereby,"  it  is  more  than  doubtful  whether  any  effect  can 
be  given  to  it  as  a  part  of  the  common  law  of  this  country.  The 
rule  fixing  the  period  of  our  revolution  as  the  time  from  which  the 
English  statutes  and  acts  of  parliament  shall  be  considered  as  part 
of  the  common  law  of  this  country,  or  that  those  statutes  enacted 
before  that  time  and  w^hich  were  adapted  to  our  condition  and  cir- 
cumstances as  a  people,  shall  be  so  considered,  is  a  general  one 
adopted  for  convenience  merely,  and  which  should  govern  in  the 


286  THE  COMMON  LAW  IX  AMERICA 

generality  of  cases,  but  not  one  intended  to  apply  always  and  to  all 
cases  or  to  all  statutes  which  may  have  been  so  enacted,  without 
regard  to  any  other  facts  or  circumstances.  The  fundamental  idea 
represented  by  tlie  rule  and  upon  which  it  is  based  is,  that  those 
statutes  which  were  so  enacted  and  which  were  suited  to  the  condi- 
tion and  circumstances  of  our  colonial  ancestors,  had  been  received, 
acted  upon  and  ratified  by  them  as  part  of  the  jurisprudence  and 
laws  of  the  colonies  before  the  separation  from  the  mother  country, 
and  which,  upon  the  separation,  the  colonists  took  with  them  as  the 
still  continuing  law,  except  where  subsequently  repealed  or  modi- 
fied by  positive  legislative  enactment.  This  view  of  the  reasons 
and  grounds  of  the  rule  would  seem  to  exclude  the  statute  in  ques- 
tion from  the  operation  of  it,  since  the  same  was  enacted  on  the 
very  eve  of  the  revolution,  and  at  a  time  when  we  know  our  ances- 
tors, in  their  colonial  state,  could  not  have  become  familiar  with, 
or  have  ratified  or  adopted  it,  and  at  a  time,  too,  when,  as  history 
shows,  all  or  nearly  all  respect  for  British  sovereignty  and  British 
laws  or  acts  of  parliament  then  being  passed,  was  well  nigh  extinct 
throughout  the  colonies.  That  our  ancestors  did  not,  and  could  not 
have  adopted  and  acted  upon  this  statute  as  part  of  their  laws 
before  their  independence,  is,  therefore,  very  certain.  It  is  certain 
from  a  consideration  of  the  time  and  circumstances  under  which  the 
statute  was  enacted,  and  also  from  a  consideration  of  the  law  as  we 
know  it  to  ha\e  been  constantly  understood  and  administered  in 
this  country  since  the  revolution.  As  to  the  statute  of  Anne,  we 
know  that  it,  with  the  construction  previously  supposed  to  have  been 
put  upon  it,  has  been  generally  understood  and  regarded  as  consti- 
tuting a  rule  of  our  common  law,  because  it  has  been  expressly  so 
adjudged  in  some  cases,  and  because  in  all  the  history  and  records 
of  our  judicial  proceedings  there  exists  not  a  precedent,  under  cir- 
cumstances where  there  might  ha\e  been  thousands,  of  an  action  or 
recovery  contrary  to  the  provisions  of  that  statute  as  the  same  is 
alleged  to  have  been  understood  in  England  and  was  doubtless 
understood  in  the  colonies  before  the  revolution  took  place.  But 
as  to  this  statute  of  Geo.  III.,  the  history  of  our  law  shows  clearly 
and  beyond  the  possibility  of  question  or  doubt,  that  it  never  has 
been  so  understood  or  applied  by  the  courts  of  this  country.  The 
cases  are  most  numerous,  and  to  be  found  in  the  courts  of  almost 
every  state  of  the  Union,  as  well  as  in  the  federal  courts,  where 
actions  have  been  maintained  and  recoveries  had  against  proprietors 
and  occupants,  on  whose  land  or  estate  fires  have  been  negligently 


SOURCES  AND  FORMS  287 

set,  or  negligently  permitted  to  begin  or  spread,  vSO  as  to  extend  to 
and  consume,  or  cause  injury  to,  the  property  of  others.  In  such 
cases  it  haa  been  invariably  held  that  the  negligent  party  is 
answerable  in  damage  for  the  losses  of  third  persons  so  caused 
and  sustained. 

Kreitz  v.  Behrensmeyer,  Supreme  Court  of  Illinois,  1894 
(149  111.  59). 
Phillips,  J.:  .  .  .  It  is  conceded  that  no  statute  exists  in  this 
state  declaring  the  rights  of  a  de  jure  officer  to  recover  from  a  de 
facto  officer  the  salary  paid  such  de  facto  officer,  who  has  discharged 
the  duties  of  the  office  under  a  wrongful  or  mistaken  purpose. 
There  is  no  legislation  on  that  subject  in  this  state.  The  right  of 
recovery,  if  it  exists,  depends,  therefore,  on  the  principles  of  the 
common  law.  The  common  law  is  a  system  of  elementary  rules  and 
of  general  judicial  declarations  of  principles,  which  are  continually 
expanding  with  the  progress  of  society,  adapting  themselves  to  the 
gradual  changes  of  trade,  commerce,  arts,  inventions,  and  the 
exigencies  and  usages  of  the  country.  Judicial  decisions  of  com- 
mon-law courts  are  the  most  authoritative  evidence  of  what  con- 
stitutes the  common  law.  By  chapter  28,  Starr  &  C.  Stat.  111.,  the 
common  law  of  England  is  declared  in  force  in  this  state.  By  refer- 
ence to  the  decisions  of  the  common-law  courts  of  England,  the 
common  law  of  that  country  is  to  be  found.  An  examination  of 
the  decisions  of  the  courts  of  that  country  shows  a  uniform  declara- 
tion of  the  principle  that  a  de  jure  officer  has  a  right  of  action  to 
recover  against  an  officer  de  facto  by  reason  of  the  intrusion  of  the 
latter  into  his  office,  and  his  receipt  of  the  emoluments  thereof. 
Among  others,  the  following  opinions  of  English  courts  may  be 
referred  to  as  sustaining  this  right  of  recovery:  Vauxw.  Jefferen,  2 
Dyer,  114;  Arris  v.  Stukely,  2  Mod.  260;  Lee  v.  Drake,  2  Salk.  468; 
Webb's  Case,  8  Coke,  45.  By  the  adoption  of  the  common  law  of 
England,  the  principle  announced  in  these  cases  was  adopted  as  the 
law  of  this  state,  for  the  principle  is  of  a  general  nature,  and  appli- 
cable to  our  constitution.  On  the  basis  of  a  sound  public  policy, 
the  principle  commends-  itself,  for  the  reason  that  one  would  be  less 
liable  to  usurp  or  wrongfully  retain  a  public  office,  and  defeat  the 
will  of  the  people  or  the  appointing  power,  as  loss  would  result 
from  wrongful  retention  or  usurpation  of  an  office.  The  question 
has  frequently  been  before  the  courts  of  the  different  states  and  of 
the  United  States,  and  the  great  w^eight  of  authority  sustains  the 


288  THE  COMMON  LAW  IN  AMERICA 

doctrine  of  the  common  law,  as  shown  by  the  opinions  of  the  judges 
in  different  states;  and  in  most  of  the  states  these  are  based  on  the 
common  law,  without  reference  to  any  statute. 

Cathcart  v.  Robinson,  Supreme  Court  of  the  United 
States,  1831  (5  Pet.  264). 

Marshall,  C.  J.:  ...  This  being  a  voluntary  conveyance,  is, 
at  this  day,  held  by  the  courts  of  England  to  be  absolutely  void 
under  the  statute  of  27  Elizabeth,  against  a  subsequent  purchaser, 
even  although  he  purchased  with  notice.  (1  Mad.  Ch.  271,  18  Ves. 
110;  2  Taunton,  523).  Their  decisions  do  not  maintain  that  a 
transaction  valid  at  the  time  is.  rendered  invalid  by  the  subsequent 
act  of  the  party.  They  do  not  maintain  that  the  character  of  the 
transaction  is  changed,  but  that  testimony  afterwards  furnished  may 
prove  its  real  character.  The  subsequent  sale  of  the  property  is 
carried  back  to  the  deed  of  settlement,  and  considered  as  proving 
that  deed  to  have  been  executed  with  a  fraudulent  intent  to  deceive 
a  subsequent  purchaser. 

The  statute  of  Elizabeth  is  in  force  in  this  district.  The  rule 
which  has  been  uniformly  observed  by  this  court  in  construing 
statutes  is  to  adopt  the  construction  made  by  the  courts  of  the 
country  by  whose  Legislature  the  statute  was  enacted.  This  rule 
may  be  susceptible  of  some  modification,  when  applied  to  British 
statutes  which  are  adopted  in  any  of  these  States.  By  adopting 
them  they  become  our  own  as  entirely  as  if  they  had  been  enacted 
by  the  Legislature  of  the  State.  The  received  construction  in 
England  at  the  time  they  are  admitted  to  operate  in  this  country 
indeed,  to  the  time  of  our  separation  from  the  British  empire  — 
may  very  properly  be  considered  as  accompanying  the  statutes 
themselves,  and  forming  an  integral  part  of  them.  But  however 
we  may  respect  subsequent  decisions,  and  certainly  they  are  entitled 
to  great  respect,  we  do  not  admit  their  absolute  authority.  If  the 
English  courts  vary  their  construction  of  a  statute  which  is  common 
to  the  two  countries,  we  do  not  hold  ourselves  bound  to  fluctuate 
with  them. 

At  the  commencement  of  the  American  Revolution  the  construc- 
tion of  the  statute  of  27  Elizabeth  seems  not  to  have  been  settled. 
The  leaning  of  the  courts  towards  the  opinion  that  every  voluntary 
settlement  would  be  deemed  void  as  to  a  subsequent  purchaser  was 
very  strong,  and  few  cases  are  to  be  found  in  which  such  convey- 
ance has  been  sustained.     But  these  decisions  seem  to  have  been 


SOURCES  AND  FORMS  289 

made  on  the  principle  that  such  subsequent  sale  furnished  a  strong 
presumption  of  a  fraudulent  intent,  which  threw  on  the  person 
claiming  under  the  settlement  the  burden  of  proving  it  from  the 
settlement  itself,  or  from  extrinsic  circumstances,  to  be  made  in 
good  faith,  rather  than  as  furnishing  conclusive  evidence  not  to  be 
repelled  by  any  circumstances  whatever. 

There  is  some  contrariety  and  some  ambiguity  in  the  old  cases 
on  the  subject;  but  this  court  conceives  that  the  modern  decisions 
establishing  the  absolute  conclusiveness  of  a  subsequent  sale  to  fix 
fraud  on  a  family  settlement,  made  without  valuable  consideration  — 
fraud  not  to  be  repelled  by  any  circumstances  whatever  —  go  beyond 
the  construction  which  prevailed  at  the  American  Revolution,  and 
ought  not  to  be  followed. 

The  universally  received  doctrine  of  that  day  unquestionably 
went  as  far  as  this.  A  subsequent  sale,  without  notice,  by  a  person 
who  had  made  a  settlement  not  on  valuable  consideration,  was  pre- 
sumptive evidence  of  fraud,  which  threw  on  those  claiming  under 
such  settlement  the  burden  of  proving  that  it  was  made  bona  fide. 
This  principle,  therefore,  according  to  the  uniform  course  of  this 
court,  must  be  adopted  in  construing  the  statute  of  27  Elizabeth  as 
it  applies  to  this  case. 

In  Fable  \.  Brown,  2  Hill.  Eq.  (S.  C),  378,  390  (1835),  Harper,  J.,  says: 
With  respect  to  the  civil  law,  however  enlightened  and  admirable  a  system 
of  jurisprudence  it  may  be,  it  is  not  our  law,  nor  have  our  courts  any  authority 
to  declare  it  so.  Our  legislature  has  adopted  another  system  of  laws.  Where 
our  law  is  obscure  or  doubtful,  it  is  frequently  of  great  utility  in  explaining  or 
determining  it,  more  especially  as  a  great  portion  of  our  law  was  derived  from 
that  source.  But  if  the  common  law  be  clear,  we  are  not  authorized  to  depart 
from  it  because  the  provisions  of  another  system  may  be  better  and  more  suited 
to  our  circumstances;  nor  if  it  be  defective,  are  Courts  authorized  to  supply 
the  deficiency  by  drawing  from  a  foreign  source. ^ 

Tucker  v.  St.  Louis  Life  Ins.  Co.,  Supreme  Court  of 
Missouri,  1876  (63  Mo.  588). 
Sherwood,  J.:  .  .  .  The  code  is  not  sufficiently  comprehen- 
sive to  embrace  every  varied  phase  which  a  case  may  assume  before 
reaching  judicial  determination,  and  in  consequence  of  this,  resort 
must  be  frequently  had  to  common  law  methods  of  procedure,  both 
in  ordinary  actions  at  law,  as  well  as  in  proceedings  looking  merely 
to  equitable  relief.     Numerous  decisions  of  this  court  exemplify  this. 

1  On  the  influence  of  the  civil  law  upon  our  present  law  see  Pound,  the  Influ- 
ence of  French  Law  in  America,  3  111.  Law  Rev.  354. 


290  THE  COMMON  LAW  IN  AMERICA 

This  being  the  case,  and  the  code  not  prescribing  the  method  to 
be  pursued  where  a  defendant  asks  affirmative  rehef  from  a  co- 
defendant,  except  that  a  judgment  giving  affirmative  relief  may  be 
rendered  in  such  cases  (Wagn.  Stat.  1051,  2)  we  must  look  to  a 
certain  extent  to  the  rules  of  pleading  and  practice  adopted  by 
courts  of  chancery. 

Mathewson  v.  Phoenix  Iron  Foundry,  United  States 
Circuit  Court,  District  of  Rhode  Island,  1884  (20  Fed. 
Rep.  281). 

Colt,  J.:  .  .  .  But  it  is  said  that  common-law  marriages  were 
never  considered  valid  in  Rhode  Island.  The  question  has  not  been 
passed  upon  by  the  state  court.  The  argument  is  based  upon  the 
history  of  legislation  upon  the  subject,  and  especially  upon  the  older 
statutes.  The  earliest  statute  relating  to  marriage  was  passed  at 
the  first  session  of  the  general  assembly  ever  held  in  Rhode  Island, 
in  1647,  and  it  provided  that  no  other  marriages  should  be  held  law- 
ful except  those  contracted  according  to  the  form  of  the  statute. 
The  act  declares: 

"No  contract  or  agreement  between  a  man  and  woman  to  owne 
each  other  as  man  and  wife  shall  be  owned  from  henceforth  threw- 
out  the  whole  colonic  as  a  lawful  marriage,  nor  the  children  or  issue 
so  coming  together  to  be  legitimate  or  lawfullie  begotten,  but  such 
as  are  in  the  first  place  with  the  parents,  then  orderly  published  in 
two  severall  meetings  of  the  townsmen,  and  lastly  confirmed  before 
the  head  officer  of  the  town,  and  entered  into  the  towne  clerk's 
booke." 

Then  follows  a  penalty  against  those  going  contrary  to  the 
"present  ordinance."     1  Col.  Rec.  187. 

By  act  of  March  17,  1656,  parties  were  required  to  publish  their 
intention  of  marriage,  and  objection  to  such  marriage  might  be 
heard  before  two  magistrates,  when,  if  disallowed,  it  was  referred 
to  the  "general  court  of  tryalls."     Id.  330. 

The  act  of  May  3,  1605,  after  condemning  the  loose  observance 
of  the  statute  of  1647,  orders  that  act  and  subsequent  acts  to  be 
punctually  observed,  and  inflicts  an  additional  penalty  of  fornica- 
tion on  persons  who  should  presume  to  marry  otherwise,  or  live 
together  as  man  and  wife.  The  act  then  proceeds  expressly  to  val- 
idate the  relations  of  all  such  then  living  within  the  colony  "that 
are  reputed  to  live  together  as  man  and  wife  by  the  common  obser- 
vation or  account  of  llieir  neighborhood."     2  Col.  Rec.  104. 


SOURCES  AND  FORMS  291 

By  the  act  of  1701  it  was  ordered  that  all  marriages  take  place 
after  due  publication  of  intentions,  etc.,  and  a  fine  was  imposed  on  offi- 
cers presuming  to  join  persons  in  marriage  without  such  publication 
excepting  those  married  according  to  the  laws,  customs  and  cere- 
monies of  the  church  of  England  and  Quakers.  The  exception 
was  afterwards  extended  to  Jews.  This  act  was  entitled,  "An  act 
for  preventing  clandestine  marriages,"  and  this  same  title  we  find 
in  the  several  subsequent  revisions  of  the  statutes  until  the  revision 
of  1857.  3  Col.  Rec.  435;  Pub.  Laws,  1663-1745,  p.  30;  Digest  of 
1767,  pp.  172-175. 

By  act  of  December,  1733,  settled  ministers  and  elders  of  every 
denomination  were  authorized  to  join  persons  in  marriage  after  due 
publication  and  upon  receiving  certificate.  They  were  required  to 
keep  and  return  to  the  town  clerk  a  record  thereof  for  registry,  and 
a  fine  was  imposed  upon  them  for  marrying  without  publication.  4 
Col.  Rec.  p.  490;  Pub.  Laws  1663-1745,  p.  176. 

It  is  claimed  that  these  enactments  are  controlling,  and  that  they 
show  that  common-law  marriages  were  ne\'er  recognized  in  Rhode 
Island.  The  common  law  has  always  existed  in  Rhode  Island, 
except  so  far  as  modified  or  changed  by  statute.  This  is  true  of 
marriage,  as  well  as  other  subjects.  The  legislature  may  have  seen 
fit  in  early  times  to  do  away  entirely  with  the  common  law,  and  to 
make  marriage  illegal  unless  it  conformed  to  the  statutory  regula- 
tions. But  if  the  legislature  had  at  any  time  repealed  all  statutes 
on  the  subjects,  the  common  law  would  have  been  revived.  And, 
in  so  far  as  the  legislature  has  seen  fit  to  change  the  statute,  to  make 
it  less  restrictive  by  not  declaring  all  other  marriages  illegal,  as  in 
the  earliest  enactments,  in  so  far  it  has  restored  the  common-law 
right.  If,  upon  a  proper  construction  of  the  statute  in  force,  we 
find  the  common-law  right  is  not  denied,  then  it  still  exists,  though 
it  may  not  have  existed  under  former  and  different  statutes.  Un- 
less the  statute  under  consideration,  upon  a  proper  construction, 
prohibits  marriages  per  verba  de  praesenti,  we  do  not  think  we 
should,  by  implication  derived  from  old  statutes,  decide  against  their 
validity.  To  make  marriages  void  and  children  illegitimate,  by 
implication,  is  a  serious  thing.  Because,  under  earlier  statutes,  a 
marriage  not  made  in  conformity  therewith,  may  have  been  invalid, 
we  do  not  feel  warranted  in  implying  that  such  is  the  proper  inter- 
pretation of  the  statute  of  1857.  We  think  it  safer  to  hold  that  in 
modifying  the  terms  of  the  statute,  the  legislature  intended  to  mod- 
ify the  law;  and,  as  we  have  before  said,  our  conclusion  is  that  the 


292  THE  COMMON  LAW  IN  AMERICA 

statute  of  1857  does  not  make  a  marriage  per  verba  de  praesenti, 
or  at  common  law,  void ;  this  being  the  construction  put  upon  simi- 
lar statutes  in  most  of  the  states,  and  in  the  Supreme  Court  of  the 
United  States. 

United  States  v.  Arredondo,  Supreme  Court  of  the  United 
States,  1832  (6  Pet.  691). 

Baldwin,  J.:  ...  There  is  another  source  of  law  in  all  gov- 
ernments —  usage,  custom,  which  is  always  presumed  to  be  adopted 
with  the  consent  of  those  who  have  been  affected  by  it.  In  Eng- 
land, and  in  the  States  of  this  Union  which  have  no  written  consti- 
tution, it  is  the  supreme  law;  always  deemed  to  have  had  its  origin 
in  an  act  of  a  State  Legislature  of  competent  power  to  make  it  valid 
and  binding,  or  an  act  of  Parliament;  which,  representing  all  the 
inhabitants  of  the  kingdom,  acts  with  the  consent  of  all,  exercises 
the  power  of  all,  and  its  acts  become  binding  by  the  authority  of  all. 
(2  Co.  Inst.  58;  Wills,  116.)  So  it  is  considered  in  the  States  and 
by  this  court.     (3  Dall.  400;  2  Peters,  656,  657.) 

A  general  custom  is  a  general  law,  and  forms  the  law  of  a  con- 
tract on  the  subject-matter;  though  at  variance  with  its  terms,  it 
enters  into  and  controls  its  stipulations  as  an  act  of  Parliament  or 
State  Legislature.  The  court  not  only  may,  but  are  bound  to  notice 
and  respect  usage  and  general  customs  as  the  law  of  the  land  equally 
with  the  written  law,  and,  when  clearly  proved,  they  will  control  the 
general  law;  this  necessarily  follows  from  its  presumed  origin  —  an 
act  of  Parliament  or  a  legislative  act.  Such  would  be  our  duty 
under  the  second  section  of  the  Act  of  1824,  though  its  usages  and 
customs  were  not  expressly  named  as  a  part  of  the  laws  or  ordi- 
nances of  Spain.  The  first  section  of  that  act,  giving  the  right  to 
claimants  of  land  under  titles  derived  from  Spain  to  institute  this 
proceeding  for  the  purpose  of  ascertaining  their  validity  and  juris- 
diction to  the  court  to  hear  and  determine  all  claims  to  land  which 
were  protected  and  secured  by  the  treaty,  and  which  might  have 
been  perfected  into  a  legal  title  under  and  in  conformity  to  the  laws, 
usages  and  customs  of  Spain,  makes  a  claim  founded  on  them  one 
of  the  cases  expressly  provided  for.  We  cannot  impute  to  Con- 
gress the  intention  to  not  only  authorize  this  court,  but  to  require  it 
to  take  jurisdiction  of  such  a  case,  and  to  hear  and  determine  such 
a  claim  according  to  the  principles  of  justice;  by  such  a  solemn 
mockery  of  it  as  would  be  evinced  by  excluding  from  our  consider- 
ation usages  and  customs  (which  are  the  law  of  every  government) 


SOURCES  AND  FORMS  293 

for  no  other  reason  than  that,  in  referring  to  the  laws  and  ordinances 
in  the  second  section,  Congress  had  not  enumerated  all  the  kinds  of 
laws  and  ordinances  by  which  we  should  decide  whether  the  claim 
would  be  valid  if  the  province  had  remained  under  the  dominion  of 
Spain.  We  might  as  well  exclude  a  royal  order  because  it  was  not 
called  a  law.  We  should  act  on  the  same  principle  if  the  words  of 
the  second  section  were  less  explicit,  and  according  to  the  rule  estab- 
lished in  Henderson  v.  Poindexter,  12  Wheat.  530,  540. 

King  v.  Edwards,  Supreme  Court  of  Montana,  1870  (1  Mont. 
235). 

Knowles,  J.:  The  mining  customs  of  any  particular  mining  dis- 
trict have  the  force  and  effect  of  laws,  or,  in  other  words,  are  laws. 
The  local  courts  in  each  one  of  the  States  and  Territories,  where 
placer  mining  is  prosecuted  to  any  extent,  have  so  recognized  them, 
and  finally.  Congress,  by  an  act  in  July,  1866,  recognized  these  rules 
and  customs  as  law. 

The  title  to  mineral  lands  is  vested  in  the  United  States.  Any 
citizen  of  the  United  States,  or  any  person  who  has  declared  his 
intention  to  become  such,  may,  by  complying  with  the  local  rules 
and  customs  of  any  district,  become  vested  with  the  right  to  possess 
and  mine  any  specific  portion  of  mining  ground.  The  customs 
which  point  out  the  manner  of  locating  mining  ground  are  condi- 
tions precedent.  A  substantial  compliance  with  them  is  necessary. 
The  right  to  possess  and  mine  any  mining  claim  is  derived  from  the 
United  States  by  virtue  of  this  compliance.  The  United  States  is 
divested  of  this  right  as  effectually  as  if  these  rules  and  customs 
were  acts  of  Congress,  for  they  now  are  the  American  common  law 
on  mining  for  precious  metals. 

Jennison  v.  Kirk,  Supreme  Court  of  the  United  States, 
1878  (98  U.S.  453,  456). 
Field,  J. :  The  object  of  the  section  was  to  give  the  sanction  of  the 
United  States,  the  proprietor  of  the  lands,  to  possessory  rights, 
which  had  previously  rested  solely  upon  the  local  customs,  laws, 
and  decisions  of  the  courts,  and  to  prevent  such  rights  from  being 
lost  on  a  sale  of  the  lands.  The  section  is  to  be  read  in  connection 
with  other  provisions  of  the  act  of  which  it  is  a  part,  and  in  the  light 
of  matters  of  public  history  relating  to  the  mineral  lands  of  the 
United  States.  The  discovery  of  gold  in  California  was  followed, 
as  is  well  known,  by  an  immense  immigration  into  the  State, 


294  THE  COMMON  LAW  IN  AMERICA 

^vhich  increased  its  population  within  three  or  four  years  from  a  few 
thousand  to  several  hundred  thousand.  The  lands  in  which  the 
precious  metals  were  found  belonged  to  the  United  States,  and  were 
unsurveyed,  and  not  open,  by  law,  to  occupation  and  settlement. 
Little  was  known  of  them  further  than  that  they  were  situated  in 
the  Sierra  Nevada  mountains.  Into  these  mountains  the  emigrants 
in  vast  numbers  penetrated,  occupying  the  ravines,  gulches,  and 
canons,  and  probing  the  earth  in  all  directions  for  the  precious 
metals.  Wherever  they  went,  they  carried  with  them  that  lo\e  of 
order  and  system  and  of  fair  dealing  which  are  the  prominent 
characteristics  of  our  people.  In  every  district  which  they  occu- 
pied they  framed  certain  rules  for  their  government,  by  which  the 
extent  of  ground  they  could  severally  hold  for  mining  was  designated, 
their  possessory  right  to  such  ground  secured  and  enforced,  and 
contests  between  them  either  avoided  or  determined.  These  rules 
bore  a  marked  similarity,  varying  in  the  several  districts  only  accord- 
ing to  the  extent  and  character  of  the  mines;  distinct  provisions 
being  made  for  different  kinds  of  mining,  such  as  placer  mining, 
quartz  mining,  and  mining  in  drifts  or  tunnels.  They  all  recog- 
nized discovery,  followed  by  appropriation,  as  the  foundation  of  the 
possessor's  title,  and  development  by  working  as  the  condition  of  its 
retention.  And  they  were  so  framed  as  to  secure  to  all  comers, 
within  practicable  limits,  absolute  equality  of  right  and  privilege 
in  working  the  mines.  Nothing  but  such  equality  would  have  been 
tolerated  by  the  miners,  who  were  emphatically  the  law-makers, 
as  respects  mining,  upon  the  public  lands  in  the  State.  The  first 
appropriator  was  everywhere  held  to  have,  within  certain  well- 
defined  limits,  a  better  right  than  others  to  the  claims  taken  up; 
and  in  all  controversies,  except  as  against  the  government,  he  was 
regarded  as  the  original  owner,  from  whom  title  was  to  be  traced. 
But  the  mines  could  not  be  worked  without  water.  Without  water 
the  gold  would  remain  forever  buried  in  the  earth  or  rock.  To  carry 
water  to  mining  localities,  when  they  were  not  on  the  banks  of  a 
stream  or  lake,  became,  therefore,  an  important  and  necessary 
business  in  carrying  on  mining.  Here,  also,  the  first  appropriator 
of  water  to  be  conveyed  to  such  localities  for  mining  or  other  bene- 
ficial purposes,  was  recognized  as  ha\ing,  to  the  extent  of  actual 
use,  the  better  right.  The  doctrines  of  the  common  law  respecting 
the  rights  of  riparian  owners  were  not  considered  as  applicable, 
or  only  in  a  very  limited  degree,  to  the  condition  of  miners  in  the 
mountains.     The  waters  of  rivers  and   lakes  were  consequently 


SOURCES  AND  FORMS  295 

carried  great  distances  in  ditches  and  flumes,  constructed  with 
vast  labor  and  enormous  expenditures  of  money,  along  the  sides  of 
mountains  and  through  cafions  and  ravines,  to  supply  communi- 
ties engaged  in  mining,  as  well  as  for  agriculturists  and  ordinary 
consumption.  Numerous  regulations  were  adopted,  or  assumed 
to  exist,  from  their  obvious  justness,  for  the  security  of  these  ditches 
and  flumes,  and  the  protection  of  rights  to  water,  not  only  between 
different  appropriators,  but  between  them  and  the  holders  of 
mining  claims.  These  regulations  and  customs  were  appealed  to 
in  controversies  in  the  State  courts,  and  received  their  sanction; 
and  properties  to  the  value  of  many  millions  rested  upon  them. 
For  eighteen  years  —  from  1848  to  1866  —  the  regulations  and 
customs  of  miners,  as  enforced  and  moulded  by  the  courts  and  sanc- 
tioned by  the  legislation  of  the  State,  constituted  the  law  govern- 
ing property  in  mines  and  in  water  on  the  public  mineral  lands. 
Until  1866,  no  legislation  was  had  looking  to  a  sale  of  the  mineral 
lands.  The  policy  of  the  country  had  previously  been,  as  shown  by 
the  legislation  of  Congress,  to  exempt  such  lands  from  sale.  In 
that  year  the  act,  the  ninth  section  of  which  we  have  quoted,  was 
passed.  In  the  first  section  it  was  declared  that  the  mineral  lands 
of  the  United  States  were  free  and  open  to  exploration  and  occupa- 
tion by  citizens  of  the  United  States,  and  those  who  had  declared 
their  intention  to  become  citizens,  subject  to  such  regulations  as 
might  be  prescribed  by  law  and  the  local  customs  or  rules  of  miners 
in  the  several  mining  districts,  so  far  as  the  same  were  not  in  con- 
flict with  the  laws  of  the  United  States.  In  other  sections  it  pro- 
vided for  acquiring  the  title  of  the  United  States  to  claims  in  veins 
or  lodes  of  quartz  bearing  gold,  silver,  cinnabar,  or  copper,  the 
possessory  right  to  which  had  been  previously  acquired  under  the 
customs  and  rules  of  miners.  In  no  provision  of  the  act  was  any 
intention  manifested  to  interfere  with  the  possessory  rights  previ- 
ously acquired,  or  which  might  be  afterwards  acquired ;  the  intention 
expressed  was  to  secure  them  by  a  patent  from  the  government. 
The  senator  of  Nevada,  Hon.  William  M.  Stewart,  the  author  of 
the  act,  in  advocating  its  passage  in  the  Senate,  spoke  in  high  praise 
of  the  regulations  and  customs  of  miners,  and  portrayed  in  glowing 
language  the  wonderful  results  that  had  followed  the  system  of 
free  mining  which  had  prevailed  with  the  tacit  consent  of  the  gov- 
ernment. The  legislature  of  California,  he  said,  had  wisely  declared 
that  the  rules  and  regulations  of  miners  should  be  received  in  evi- 
dence in  all  controversies  respecting  mining  claims,  and,  when  not 


296  THE  COMMON  LAW  IN' AMERICA 

in  conflict  with  the  Constitution  or  laws  of  the  State  or  of  the 
United  States,  should  govern  their  determination:  and  a  series  of 
wise  judicial  decisions  had  moulded  these  regulations  and  customs 
into  "a  comprehensive  system  of  common  law,  embracing  not  only 
mining  law,  properly  speaking,  but  also  regulating  the  use  of  water 
for  mining  purposes."  The  miner's  law,  he  added,  was  a  part  of 
the  miner's  nature.  He  had  made  it,  and  he  trusted  it  and  obeyed 
it.  He  had  given  the  honest  toil  of  his  life  to  discover  wealth, 
which,  when  found,  was  protected  by  no  higher  law  than  that  enacted 
by  himself,  under  the  implied  sanction  of  a  just  and  generous 
government.  And  the  act  proposed  continued  the  system  of  free 
mining,  holding  the  mineral  lands  open  to  exploration  and  occu- 
pation, subject  to  legislation  by  Congress  and  to  local  rules.  It 
merely  recognized  the  obligation  of  the  government  to  respect 
private  rights  which  had  grown  up  under  its  tacit  consent  and 
approval.  It  proposed  no  new  system,  but  sanctioned,  regulated, 
and  confirmed  a  system  already  established,  to  which  the  people 
were  attached.  Cong.  Globe,  1st  Sess.,  39th  Cong.,  part  iv.,  pp. 
3225-3228. 

These  statements  of  the  author  of  the  act  in  advocating  its  adop- 
tion cannot,  of  course,  control  its  construction,  where  there  is  doubt 
as  to  its  meaning;  but  they  show  the  condition  of  mining  property 
on  the  public  lands  of  the  United  States,  and  the  tenure  by  which 
it  was  held  by  miners  in  the  absence  of  legislation  on  the  subject, 
and  thus  serve  to  indicate  the  probable  intention  of  Congress  in 
the  passage  of  the  act. 

Whilst  acknowledging  the  general  wisdom  of  the  regulations  of 
miners,  as  sanctioned  by  the  State  and  moulded  by  its  courts,  and 
seeking  to  give  title  to  possessions  acquired  under  them,  it  must 
have  occurred  to  the  author,  as  it  did  to  others,  that  if  the  title  of 
the  United  States  was  conveyed  to  the  holders  of  mining  claims, 
the  right  of  way  of  owners  of  ditches  and  canals  across  the  claims, 
although  then  recognized  by  the  local  customs,  laws,  and  decisions, 
would  be  thereby  destroyed,  unless  secured  by  the  act.  And  it 
was  ff)r  the  purpose  of  securing  rights  to  water,  and  rights  of  way 
over  the  public  lands  to  convey  it,  which  were  thus  recognized, 
that  the  ninth  section  was  adopted,  and  not  to  grant  rights  of  way 
where  they  were  not  previously  recognized  by  the  customary  law  of 
miners.  The  section  purported  in  its  first  clause  only  to  protect 
rights  to  the  use  of  water  for  mining,  majiufacturing,  or  other  bene- 
ficial purposes,  acquired  by  ])riority  of  possession,  when  recognized 


SOURCES  AND  FORMS  297 

by  the  local  customs,  laws,  and  decisions  of  the  courts;  and  the 
second  clause,  declaring  that  the  right  of  way  for  the  construction 
of  ditches  and  canals  to  carry  water  for  those  purposes  "is  acknowl- 
edged and  confirmed,"  cannot  be  construed  as  conferring  a  right  of 
way  independent  of  such  customary  law,  but  only  as  acknowledging 
and  confirming  such  right  as  that  law  gave.  The  proviso  to  the 
section  conferred  no  additional  rights  upon  the  owners  of  ditches 
subsequently  constructed;  it  simply  rendered  them  liable  to  parties 
on  the  public  domain  whose  possessions  might  be  injured  by  such 
construction.  In  other  words,  the  United  States  by  the  section 
said,  that  whenever  rights  to  the  use  of  water  by  priority  of  posses- 
sion had  become  vested,  and  were  recognized  by  the  local  custorns, 
laws,  and  decisions  of  the  courts,  the  owners  and  possessors  should 
be  protected  in  them;  and  that  the  right  of  way  for  ditches  and 
canals  incident  to  such  water-rights,  being  recognized  in  the  same 
manner,  should  be  "acknowledged  and  confirmed";  but  where 
ditches  subsequently  constructed  injured  by  their  construction 
the  possessions  of  others  on  the  public  domain,  the  owners  of  such 
ditches  should  be  liable  for  the  injuries  sustained.  Any  other  con- 
struction would  be  inconsistent  with  the  general  purposes  of  the 
act,  which,  as  already  stated,  was  to  give  the  sanction  of  the  gov- 
ernment to  possessory  rights  acquired  under  the  local  customs,  laws, 
and  decisions  of  the  courts. 

Blackstone,  Commentaries,  I,  76. 

When  a  custom  ^  is  actually  proved  to  exist,  the  next  inquiry  is 
into  the  legality  of  it;  for,  if  it  is  not  a  good  custom,  it  ought  to  be 
no  longer  used.  "Alalus  nsus  aholendus  esf  is  an  established  maxim 
of  the  law.  To  make  a  particular  custom  good,  the  following  are 
necessary  requisites: 

1.  That  it  have  been  used  so  long,  that  the  memory  of  man  run- 
neth not  to  the  contrary.  So  that,  if  any  one  can  show  the  begin- 
ning of  it,  it  is  no  good  custom.  For  which  reason  no  custom  can 
prevail  against  an  express  act  of  parliament,  since  the  statute  itself 
is  a  proof  of  a  time  when  such  a  custom  did  not  exist. 

2.  It  must  have  been  continued.  Any  interruption  would  cause 
a  temporary  ceasing:    the  revival  gives  it  a  new  beginning,  which 

^  Gray,  Nature  and  Sources  of  Law,  Chap.  XII;  Austin,  Jurisprudence  (3 
ed.)  103  ff;  Salmond,  Jurisprudence,  §§42-43,46-48;  Holland,  Jurisprudence, 
Chap.  V,  Subdiv.  I;  Clark,  Practical  Jurisprudence,  324-334.  See  also  Carter, 
Law,  Its  Origin,  Growth  and  Function,  IS,  24,  118  ff.,  158,  241  ff. 


298  THE  COMMON  LAW  IN  AMERICA. 

will  be  within  lime  of  memory,  and  thereupon  the  custom  will  be 
void.  But  this  must  be  understood  with  regard  to  an  interruption 
of  the  right;  for  an  interruption  of  the  possession  only,  for  ten  or 
twenty  years,  will  not  destroy  the  custom.  As  if  the  inhabitants 
of  a  parish  have  a  customary  right  of  watering  their  cattle  at  a 
certain  pool,  the  custom  is  not  destroyed,  though  they  do  not  use 
it  for  ten  years;  it  only  becomes  more  difficult  to  prove:  but  if  the 
right  be  any  how  discontinued  for  a  day,  the  custom  is  quite  at  an 
end. 

3.  It  must  have  been  peaceable,  and  acquiesced  in ;  not  subject  to 
contention  and  dispute.  For  as  customs  owe  their  original  to  com- 
mon consent,  their  being  immemorially  disputed,  either  at  kiw  or 
otherwise,  is  a  proof  that  such  consent  was  wanting. 

4,  Customs  must  be  reasonable ;  or  rather,  taken  negatively,  they 
must  not  be  unreasonable.  Which  is  not  always,  as  Sir  Edward 
Coke  says,  to  be  understood  of  every  unlearned  man's  reason,  but  of 
artificial  and  legal  reason,  warranted  by  authority  of  law.  Upon 
which  account  a  custom  may  be  good,  though  the  particular  reason 
of  it  cannot  be  assigned;  for  it  sufficeth,  if  no  good  legal  reason  can 
be  assigned  against  it.  Thus  a  custom  in  a  parish,  that  no  man 
shall  put  his  beasts  into  the  common  till  the  third  of  October,  would 
be  good ;  and  yet  it  would  be  hard  to  show  the  reason  why  that  day 
in  particular  is  fixed  upon,  rather  than  the  day  before  or  after. 
But  a  custom,  that  no  cattle  shall  be  put  in  till  the  lord  of  the  manor 
has  first  put  in  his,  is  unreasonable,  and  therefore  bad:  for  perad- 
venture  the  lord  will  never  put  in  his,  and  then  the  tenants  will  lose 
all  their  profits. 

5.  Customs  ought  to  be  certain.  A  custom,  that  lands  shall 
descend  to  the  most  worthy  of  the  owner's  blood,  is  void;  for  how 
shall  this  worth  be  determined  ?  but  a  custom  to  descend  to  the  next 
male  of  the  blood,  exclusive  of  females,  is  certain,  and  therefore  good. 
A  custom  to  pay  two-pence  an  acre  in  lieu  of  tithes,  is  good ;  but  to 
pay  sometimes  two-pence,  and  sometimes  three-pence,  as  the  occu- 
pier of  the  land  pleases,  is  bad  for  its  uncertainty.  Yet  a  custom, 
to  pay  a  year's  improved  \alue  for  a  fine  on  a  copyhold  estate,  is 
good;  though  the  value  is  a  thing  uncertain:  for  the  value  may  at 
any  time  be  ascertained;  and  the  maxim  of  law  is,  id  certiim  est, 
gtwd  certiim  reddi  potest. 

6,  Customs,  though  established  by  consent,  must  be  (when 
established)  compulsory;  and  not  left  to  the  oi:)tion  of  every  man, 
whether  he  will  use  them  or  no.    Therefore  a  custom,  that  all  the 


SOURCES  AND  FORMS  299 

inhabitants  shall  be  rated  toward  the  maintenance  of  a  bridge,  will 
be  good;  but  a  custom,  that  every  man  is  to  contrii)ute  thereto  at 
his  own  pleasure,  is  idle  and  absurd,  and  indeed  no  custom  at  all. 

Lastly,  customs  must  be  consistent  with  each  other:  one  custom 
cannot  be  set  up  in  opposition  to  another.  For  if  both  are  really 
customs,  then  both  are  of  equal  antiquity,  and  both  established  by 
mutual  consent;  which  to  say  of  contradictory  customs  is  absurd. 
Therefore,  if  one  man  prescribes  theit  by  custom  he  has  a  right  to 
have  windows  looking  into  another's  garden ;  the  other  cannot  claim 
a  right  by  custom  to  stop  up  or  obstruct  those  windows:  for  these 
two  contradictory  customs  cannot  both  be  good,  nor  both  stand 
together.  He  ought  rather  to  deny  the  existence  of  the  former 
custom. 

Leach  v.  Perkins,  Supreme  Court  of  Maine,  1840  (17  Me. 
462). 
Shepley,  J.:  The  rights  of  parties  are  to  be  determined  by  law, 
and  not  by  any  local  custom  or  usage,  unless  there  be  proof,  that 
such  custom  or  usage  is  certain,  general,  frequent,  and  so  ancient  as 
to  be  generally  known  and  acted  upon.  In  such  cases,  if  the  courts 
adjudge  it  to  be  reasonable,  it  affects  the  right  of  the  parties  upon 
the  presumption,  that  they  have  made  their  contract  with  reference 
to  it:  3  Wash.  C.  C.  149;  8  Serg.  &  R.  539.  The  usages  of  trade 
in  a  particular  city  or  place,  are  thus  received  to  explain  the  inten- 
tion of  the  parties,  and  to  ascertain  their  rights  under  a  contract 
presumed  to  be  made  with  reference  to  them:  2  Bos.  &  Pul.  432; 
3  Id.  23;  7  Mass.  36;  3  Wend.  283.  The  usage  of  trade  has  also 
been  admitted  to  explain  what  the  parties  intended  by  the  use  of  a 
doubtful  word  or  phrase,  or  term  of  art,  in  a  policy  of  insurance,  bill 
of  lading,  and  deed:  7  Johns.  385;  8  Serg.  &  R.  535;  6  Greenl.  154. 
And  in  a  particular  profession,  art,  or  branch  of  trade,  as  among 
printers:  1  S.  C.  Const.  308;  3  Greenl.  276.  And  among  carriers: 
2  Nott  &  M.  9;  3  Day,  346;  3  Conn.  9.  And  in  the  lumber  trade: 
6  Greenl.  200.  The  usages  of  banks  in  certain  cities  and  places  have 
been  received  upon  the  presumption  that  the  parties  contracted  with 
reference  to  them:  11  Mass.  85;  9  Wheat.  581.  So  has  a  custom  in 
certain  places,  that  a  tenant  should  take  "the  way-going  crop":  5 
Binn.  287;  or  receive  compensation  for  labor  for  the  benefit  of  the 
forthcoming  crop :  1  Brod.  &  B.  224.  In  these  and  many  other  cases, 
usage  has  been  received  to  explain  the  intention  of  the  parties  in 
making  a  contract,  and  thus  to  have  an  influence  upon  their  rights. 


300  THF:  common  law  in  AMERICA 

But  custom  does  not  appear  to  have  been  received  to  establish  the 
right,  or  to  prove  the  origin  of  the  relation  by  which  the  parties 
become  responsible  to  each  other.  Mr.  Justice  Thompson,  in  speak- 
ing of  the  admission  of  the  usage  of  the  departments  of  the  govern- 
ment to  allow  a  commission  on  the  disbursements  of  the  public 
money,  excludes  any  inference  that  it  might  be  recei\ed  for  such  a 
purpose,  remarking  that  "it  was  not  for  the  purpose  of  establishing 
the  right,  but  to  show  the  measure  of  compensation  and  the  manner 
in  which  it  was  to  be  paid  "  :  7  Pet.  28. 

The  case  of  Thompson  v.  Harrington,  12  Pick,  425,  has  been 
regarded  in  the  argument  as  authorizing  the  reception  of  usage  as 
corroborative  proof  of  the  existence  of  a  contract.  In  the  report  of 
the  case  it  is  stated,  that  the  judge  instructed  the  jury,  that  "usage 
might  serve  in  some  measure  to  show  what  was  the  intention  of  the 
parties,  or  to  substantiate  the  testimony"  of  the  witnesses.  In  the 
opinion  of  the  court  no  allusion  is  made  to  any  such  instruction,  and 
the  princii)le  upon  which  the  court  sustained  the  admission  is  in 
accordance  with  the  preceding  cases  in  that  state.  The  language  of 
the  court  is,  "usage  was  admissible  in  evidence  to  explain  the  act 
of  the  owners,  and  to  enable  the  jury  to  determine  whether  that  act 
amounted  to  a  letting  to  hire,  or  an  appointment  of  a  master."  The 
customs  or  usages  here  alluded  to  are  not  those  customs  which  have 
existed  in  a  place  or  country  so  long,  that  the  memory  of  man 
runneth  not  to  the  contrary,  and  which,  when  established  as  the 
rules  of  the  common  law  require,  become  a  part  of  it;  but  are  such 
as  are  to  be  established  by  the  proof  of  the  facts  showing  the  accus- 
tomed mode  of  dealing  or  of  conducting  a  certain  trade  or  branch 
of  business.  And  when  the  mode  of  conducting  the  business,  or 
in  other  words,  the  usage  is  proved,  the  law  determines,  as  in  other 
cases,  what  are,  under  the  circumstances,  the  rights  of  the  parties. 
And  it  is  no  more  competent  to  prove  what  would  be  the  legal  rights 
of  the  parties  arising  out  of  such  usage,  than  to  prove  by  witnesses 
the  law  of  the  contract  in  any  other  case. 

Whether  a  usage  is  proved,  is  a  fact  for  the  jury  to  find:  2  Gill 
&  J.  136.  But  it  would  be  tlie  duty  of  the  court  to  instruct  them 
that,  if  it  was  not  proved  to  be  certain  and  general,  and  to  partake 
of  the  other  recjuisites,  before  stated,  that  the  testimony  should 
ha\'e  no  inHuence  upon  the  rights  of  the  parties. 

The  custom  as  stated  in  this  bill  of  excejitions  is  presented  rather 
as  a  mode  agreed  upon  among  the  ]iarties  interested  to  build  vessels, 
than  as  a  well  established  method  of  actually  conducting  the  process 


SOURCES  AND  FORMS  301 

of  building:  and  proof  was  admitted,  "that  the  owners  were  not 
jointly  responsible  for  materials  and  labor  for  the  vessel, 'and  that 
no  one  was  authorized  to  make  contracts  for  materials  and  labor, 
etc.,  for  the  vessel,  so  as  to  bind  the  owners  generally,"  apparently 
as  part  of  the  proof  of  the  custom.  It  is  alleged  in  argument,  that 
testimony  to  prove  not  only  the  custom  but  its  legal  effect  upon 
the  rights  of  the  parties,  was  not  in  fact  admitted,  but  the  language 
used  does  not  appear  to  be  susceptible  of  any  other  construction. 
It  may  be  that  upon  a  new  trial  the  facts  in  relation  to  the  manner 
of  building  in  the  place  where  the  vessel  was  built,  will  be  so 
fully  proved  as  to  establish  a  usage  with  all  the  necessary  requisites 
to  authorize  the  presumption,  that  these  parties  contracted  with 
reference  to  it;  but  as  it  is  presented  in  this  bill  of  exceptions,  the 
evidence  should  not  have  been  admitted. 

If  the  plaintiff  fails  in  establishing  any  usage,  he  may  prove  that 
the  parties  building  the  vessel  agreed  among  themselves,  as  stated, 
that  his  contract  was  made  with  a  knowledge  of  and  in  obedience 
to  such  agreement,  and  thus  be  entitled  to  recover.  Nor  is  there  any 
necessity,  as  the  argument  supposes,  that  such  a  mode  of  building 
vessels  should  be  abandoned  if  the  usage  fails,  for  the  parties  may 
accomplish  the  object  of  relieving  themselves  from  responsibility 
for  the  whole  of  the  materials  and  labor  by  an  agreement  to  that 
effect  among  themselves,  and  by  taking  care  to  make  it  known  to 
each  one  with  whom  a  contract  is  made,  so  as  to  have  proof  that 
he  contracted  with  a  know^ledge  that  he  must  rely  only  upon  the 
person  with  whom  he  contracted. 

Exceptions  sustained  and  new  trial  granted. 

Tremble  v.  Crowell,  Supreme  Court  of  Michigan,  1869 
(17  Mich.  493). 

Graves,  J.:  The  defendants  in  error  sued  Tremble  in  the  court 
below,  in  assumpsit,  and  sought  to  recover  from  him  certain  money 
which  they  alleged  they  had  paid  him  for  a  quantity  of  fish  he  had 
sold  to  them,  and  which  had  proved  to  have  been  unsound  and  value- 
less. The  declaration  contained  the  common  and  money  counts,  and 
also  a  special  count  in  which  the  defendants  in  error  alleged  in  the 
usual  manner  that  the  plaintiff  in  error  warranted  the  fish  to  be  good, 
sound,  and  fit  for  the  market. 

The  plaintiffs  below,  after  giving  evidence  to  show  that  they  were 
wholesale  fish  dealers  at  Toledo,  in  the  state  of  Ohio,  and  pur- 
chased of  the  defendant,  who  was  a  fisherman  at  Bay  City,  and  paid 


302  THE  COMMON  LAW  IN  AMERICA 

therefor,  about  $1500  worth  of  fish,  of  which,  on  their  arrival  at 
Toledo,  some  sixty-eight  half  barrels  were  found  to  be  spoiled  and 
valueless,  ofTered  evidence  to  prove  that  there  was  a  settled  uni- 
form usage,  that  under  a  contract  for  the  sale  of  fish  for  cash,  and 
where  there  was  no  express  warranty  if  the  fish  or  any  portion  of 
them  pro\ed  to  be  unsound,  the  vendor  should  be  liable  to  pay  back 
to  the  purchaser  the  money  paid  for  such  unsound  fish,  and  the  evi- 
dence was  admitted  under  objection. 

Subsequently  the  circuit  judge,  in  submitting  the  case  to  the 
jury,  instructed  them  that  if  they  should  find  such  a  settled  uniform 
usage  it  was  valid,  and  that,  by  virtue  thereof,  the  plaintifTs  would 
be  entitled  to  recover  the  money  paid  for  the  unsound  fish,  unless 
the  parties  made  a  contract  excluding,  by  its  very  terms,  the  opera- 
tion of  such  usage;  and  to  this  direction  the  defendant  below  ex- 
cepted. 

These  objections  present  the  main  questions  in  the  case. 

It  will  be  observed  that  the  usage  relied  on  would,  if  established, 
place  the  dealers  in  fish  in  Bay  City  and  vicinity,  in  a  position  very 
different  from  that  held  by  persons  in  the  same  business  in  other 
parts  of  the  state;  and  would  tacitly  annex  to  all  contracts  there 
made  for  the  sale  of  fish,  unless  expressly  excluded  by  the  contract 
itself,  a  stipulation  which  would  tend,  inevitably,  to  supersede  all 
ofificial  as  well  as  private  inspection ;  and  would  prescribe  a  specific 
redress  in  case  of  the  sale  of  "tainted"  or  "damaged"  fish,  entirely 
different  from  that  marked  out  by  the  statute. 

Would  such  a  usage  be  a  reasonable  one  if  conclusively  pro\ed? 
It  appears  to  me  that  it  would  not. 

Tiie  legislature  have  thought  proper  to  provide  for  a  system  of 
public  inspection  of  various  articles,  and  among  them  the  article  of 
fish ;  and  have  made  numerous  and  precise  regulations  on  that  sub- 
ject:  1  Comp.  L.,  p.  386;  also,  392  to  394. 

They  have  provided  for  the  election  of  inspectors;  have  required 
them  to  make  inspection  when  desired  so  to  do;  have  specified  the 
manner  in  which  it  should  be  done;  have  provided  that  the  fish 
inspected  should  be  designated  by  the  inspector  as  number  "one," 
or  "two,"  according  to  quality,  and  have  required  the  inspectors  to 
report  annually  to  the  secretary  of  state  the  quantity,  quality,  and 
kinds  inspected  during  the  year. 

They  have  also  provided  that,  if  any  person  shall  sell,  within  the 
state,  or  export,  or  cause  to  be  exported  therefrom,  any  tainted  or 
otherwise  damaged  fish,  unless  with  the  intent  that  the  same  shall 


SOURCES  AND  FORMS  303 

be  used  for  some  other  purpose  than  as  food,  he  shall  forfeit  SIO 
for  every  one  hundred  pounds  of  such  fish ;  and  that  upon  the  trial, 
the  burden  of  proof  shall  be  upon  the  vendor  to  show  for  what 
purpose  such  fish  were  sold  or  exported. 

By  another  section  they  have  declared  that  it  shall  not  be  obli- 
gatory upon  any  one  to  have  fish  inspected ;  but  that  all  contracts 
for  the  sale  of  fish  shall  be  deemed  made  with  reference  to  those 
provisions  of  the  statute  regulating  the  quality,  quantity,  and  other 
descriptions,  unless  the  parties  otherwise  expressly  agree:  Comp. 
L.,  §  1236. 

Although  the  statute  is  not  imperative  on  the  subject  of  inspec- 
tion, the  penal  provision  against  the  sale  of  "tainted"  or  damaged 
fish  is  so;  and  the  whole  act  is  plainly  expressive  of  a  legislative 
purpose  to  provide  the  system  of  regulations  for  the  trade,  which 
the  legislature  deemed  the  best.  Whether  the  usage  in  question 
would  directly  and  necessarily  conflict  with  any  of  these  statutory 
regulations  need  not  be  determined,  since  in  my  opinion  the  usage 
cannot  be  sustained  if  found  to  be  inconsistent  with  the  policy  or 
spirit  of  the  statute. 

It  appears  to  me  to  be  a  part  of  the  policy  of  the  law  in  question 
to  encourage  the  practice  of  official  inspection  and  discourage  a 
contrary  course,  to  regulate  the  traffic  in  fish  in  the  manner  most 
likely  to  insure  fairness  between  dealers,  and  maintain  everywhere  the 
reputation  of  a  most  important  branch  of  the  commerce  of  the  state. 

As  the  supposed  usage  assumes  that  the  article  is  purchased  with- 
out the  safeguard  of  inspection,  and  that  the  buyer  will  be  saved 
from  loss  on  a  purchase  of  uninspected  fish  by  the  right  given  him 
by  the  usage  to  recover  of  the  vendor  the  price  actually  paid ;  the 
effect  of  the  usage  must  be  to  cause  dealers  to  dispense  with  inspec- 
tion, and  pave  the  way  for  those  consequences  which  the  law 
was  designed  to  avert;  and,  at  the  same  time,  to  defeat  the  desir- 
able objects  which  the  legislature  intended  to  promote. 

Without  attempting  to  contrast  the  usage  with  specific  provisions, 
I  think  there  can  be  no  doubt  but  that  it  would  introduce  a  practice 
altogether  at  variance  with  the  spirit  and  plain  policy  of  the  inspec- 
tion laws;  and  that  if  it  were  accepted  as  binding,  it  would  go  far 
to  render  those  laws  nugatory,  and  to  supersede  inspection  alto- 
gether by  responsible  public  officers. 

Entertaining  this  opinion,  I  think  that  the  usage  in  question  was 
and  is  invalid,  and  that  it  could  furnish  no  basis  for  a  recovery  in 
this  case. 


304  THE  COMMON  LAW  IN  AMERICA 

This  conclusion,  if  correct,  makes  it  unnecessary  to  consider  the 
other  questions  in  the  case.  I  think  the  judgment  of  the  court 
below  should  be  reversed  with  costs. 

The  other  justices  concurred. 


SELF-HELP  305 


CHAPTER   V 

COURTS:   THEIR  ORGANIZATION    AND 
JURISDICTION 

1.     SELF-HELP 

Blackstone,   Commentaries,   III,   2,   15. 

The  more  effectually  to  accomplish  the  redress  of  private  injuries, 
courts  of  justice  are  instituted  in  every  civilized  society,  in  order  to 
protect  the  weak  from  the  insults  of  the  stronger,  by  expounding 
and  enforcing  those  laws,  by  which  rights  are  defined  and  wrongs 
prohibited.  This  remedy  is  therefore  principally  to  be  sought  by 
application  to  these  courts  of  justice;  that  is,  by  civil  suit  or  action. 
For  which  reason  our  chief  employment  in  this  book  will  be  to  con- 
sider the  redress  of  private  wrongs  by  suit  or  action  in  courts. 
But  as  there  are  certain  injuries  of  such  a  nature  that  some  of 
them  furnish  and  others  require  a  more  speedy  remedy  than  can 
be  had  in  the  ordinary  forms  of  justice,  there  is  allowed  in  those 
cases  an  extrajudicial  or  eccentrical  kind  of  remedy;  of  which  I 
shall  first  of  all  treat,  before  I  consider  the  several  remedies  by  suit: 
and,  to  that  end,  shall  distribute  the  redress  of  private  wrongs  into 
three  several  species:  first,  that  which  is  obtained  by  the  mere  act 
of  the  parties  themselves;  secondly,  that  which  is  effected  by  the 
mere  act  and  operation  of  law;  and,  thirdly,  that  which  arises  from 
suit  or  action  in  courts,  which  consists  in  a  conjunction  of  the 
other  two,  the  act  of  the  parties  co-operating  with  the  act  of  law. 

And  first,  of  that  redress  of  private  injuries  which  is  obtained  by 
the  mere  act  of  the  parties.  This  is  of  two  sorts:  first,  that  which 
arises  from  the  act  of  the  injured  party  only;  and,  secondly,  that 
which  arises  from  the  joint  act  of  all  the  parties  together:  both 
which  I  shall  consider  in  their  order. 

Of  the  first  sort,  or  that  which  arises  from  the  sole  act  of  the 
injured  party,  is 

I.  The  defense  of  one's  self,  or  the  mutual  and  reciprocal  defense 
of  such  as  stand  in  the  relations  of  husband  and  wife,  parent  and 
child,  master  and  servant.     In  these  cases,  if  the  party  himself,  or 


306  ORGANIZATION  AND  JURISDICTION 

any  of  these  his  relations,  be  forcibly  attacked  in  his  person  or 
property  it  is  lawful  for  him  to  repel  force  by  force;  and  the  breach 
of  the  peace  which  happens  is  chargeable  upon  him  only  who  began 
the  affray.  For  the  law  in  this  case  respects  the  passions  of  the 
human  mind,  and  (when  external  violence  is  offered  to  a  man  him- 
self, or  those  to  whom  he  bears  a  near  connection)  makes  it  lawful 
in  him  to  do  himself  that  immediate  justice  to  which  he  is  prompted 
by  nature,  and  which  no  prudential  motives  are  strong  enough  to 
restrain.  It  considers  that  the  future  process  of  law  is  by  no  means 
an  adequate  remedy  for  injuries  accompanied  with  force;  since  it  is 
impossible  to  say  to  what  wanton  lengths  of  rapine  or  cruelty  out- 
rages of  this  sort  might  be  carried  unless  it  were  permitted  a  man 
immediately  to  oppose  one  violence  with  another.  Self-defense, 
therefore  as  it  is  justly  called  the  primary  law  of  nature,  so  it  is 
not,  neither  can  it  be,  in  fact,  taken  away  by  the  law  of  society.  In 
the  English  law  particularly  it  is  held  an  excuse  for  breaches  of  the 
peace,  nay,  even  for  homicide  itself:  but  care  must  be  taken  that 
the  resistance  does  not  exceed  the  bounds  of  mere  defense  and  pre- 
vention: for  then  the  defender  would  himself  become  an  aggressor. 
II.  Recaption  or  reprisal  is  another  species  of  remedy  by  the 
mere  act  of  the  party  injured.  This  happens  when  any  one  hath 
deprived  another  of  his  property  in  goods  or  chattels  personal,  or 
wrongfully  detains  one's  wife,  child,  or  servant:  in  which  case  the 
owner  of  the  goods,  and  the  husband,  parent,  or  master,  may  law- 
fully claim  and  retake  them  wherever  he  happens  to  find  them,  so 
it  be  not  in  a  riotous  manner,  or  attended  with  a  breach  of  the 
peace.  The  reason  for  this  is  obvious;  since  it  may  frequently 
happen  that  the  owner  may  have  this  only  opportunity  of  doing  him- 
self justice:  his  goods  may  be  afterwards  conveyed  away  or  de- 
stroyed ;  and  his  wife,  children  or  servants  concealed  or  carried  out 
of  his  reach;  if  he  had  no  speedier  remedy  than  the  ordinary  proc- 
ess of  law.  If  therefore  he  can  so  contrive  it  as  to  gain  possession 
of  his  property  again  without  force  or  terror,  the  law  favors  and 
will  justify  his  proceeding.  But  as  the  public  peace  is  a  superior 
consideration  to  any  one  man's  private  property ;  and  as,  if  individ- 
uals were  once  allowed  to  use  private  force  as  a  remedy  for  pri- 
vate injuries,  all  social  justice  must  cease,  the  strong  would  give  law 
to  the  weak,  and  every  man  would  revert  to  a  state  of  nature;  for 
these  reasons  it  is  provided  that  this  natural  right  of  recaption  shall 
never  be  exerted  where  such  exertion  must  occasion  strife  and  bodily 
contention,  or  endanger  the  peace  of  society.     If,  for  instance,  my 


SELF-HELP  307 

horse  is  taken  away,  and  I  find  him  in  a  common,  a  fair,  or  a  public 
inn,  I  may  lawfully  seize  him  to  my  own  use;  but  I  cannot  justify 
breaking  open  a  private  stable,  or  entering  on  the  grounds  of  a 
third  person,  to  take  him,  except  he  be  feloniously  stolen;  but  must 
have  recourse  to  an  action  at  law. 

IIL  As  recaption  is  a  remedy  given  to  the  party  himself  for  an 
injury  to  his  personal  property,  so,  thirdly,  a  remedy  of  the  same 
kind  for  injuries  to  real  property  is  by  entry  on  lands  and  tene- 
ments when  another  person  without  any  right  has  taken  possession 
thereof.  This  depends  in  some  measure  on  like  reasons  with  the 
former;  and  like  that,  too,  must  be  peaceable  and  without  force. 
There  is  some  nicety  required  to  define  and  distinguish  the  cases 
in  which  such  entry  is  lawful  or  otherwise;  it  will  therefore  be 
more  fully  considered  in  a  subsequent  chapter;  being  only  mentioned 
in  this  place  for  the  sake  of  regularity  and  order. 

IV.  A  fourth  species  of  remedy  by  the  mere  act  of  the  party 
injured  is  the  abatement  or  removal  of  nuisances.  What  nuisances 
are,  and  their  several  species,  we  shall  find  a  more  proper  place  to 
inquire  under  some  of  the  subsequent  divisions.  At  present,  I  shall 
only  observ^e,  that  whatsoever  unlawfully  annoys  or  doth  damage 
to  another  is  a  nuisance;  and  such  nuisance  may  be  abated,  that 
is,  taken  away  or  removed,  by  the  party  aggrieved  thereby,  so  as 
he  commits  no  riot  in  the  doing  of  it.  If  a  house  or  wall  is  erected 
so  near  to  mine  that  it  stops  my  ancient  lights,  which  is  a  private 
nuisance,  I  may  enter  my  neighbor's  land  and  peaceably  pull  it 
down.  Or  if  a  new  gate  be  erected  across  the  public  highway, 
which  is  a  common  nuisance,  any  of  the  king's  subjects  passing 
that  way  may  cut  it  down  and  destroy  it.  And  the  reason  why  the 
law  allows  this  private  and  summary  method  of  doing  one's  self 
justice,  is  because  injuries  of  this  kind,  which  obstruct  or  annoy 
such  things  as  are  of  daily  convenience  and  use,  require  an  im- 
mediate remedy,  and  cannot  wait  for  the  slow  progress  of  the 
ordinary   forms  of  justice. 

V.  A  fifth  case  in  which  the  law  allows  a  man  to  be  his  own 
avenger,  or  to  minister  redress  to  himself,  is  that  of  distraining  cattle 
or  goods  for  the  non-payment  of  rent,  or  other  duties;  or  distraining 
another's  cattle  damage-feasant,  that  is,  doing  damage  or  tres- 
passing upon  his  land.  The  former  intended  for  the  benefit  of 
landlords,  to  prevent  tenants  from  secreting  or  withdrawing  their 
effects  to  his  prejudice;  the  latter  arising  from  the  necessity  of  the 
thing  itself,  as  it  might  otherwise  be  impossible  at  a  future  time  to 


308  ORGANIZATION  AND  JURISDICTION 

ascertain  whose  cattle  they  were  that  committed  the  trespass  or 
damage. 

VI.  The  seizing  of  heriots,  when  due  on  the  death  of  a  tenant, 
is  also  another  species  of  self-remedy,  not  much  unlike  that  of  taking 
cattle  or  goods  in  distress.  As  for  that  division  of  heriots  which  is 
called  heriot-service,  and  is  only  a  species  of  rent,  the  lord  may 
distrain  for  this  as  well  as  seize;  but  for  heriot-custom  (which  Sir 
Edward  Coke  says  lies  only  in  prender,  and  not  in  render)  the 
lord  may  seize  the  identical  thing  itself,  but  cannot  distrain  any  other 
chattel  for  it.  The  like  speedy  and  effectual  remedy  of  seizing  is 
given  with  regard  to  many  things  that  are  said  to  lie  in  franchise; 
as  waifs,  wrecks,  estrays,  deodands,  and  the  like;  all  which  the 
person  entitled  thereto  may  seize  without  the  formal  process  of  a 
suit  or  action.  Not  that  they  are  debarred  of  this  remedy  by  action ; 
but  have  also  the  other  and  more  speedy  one,  for  the  better  asserting 
their  property;  the  thing  to  be  claimed  being  frequently  of  such  a 
nature  as  might  be  out  of  the  reach  of  the  law  before  any  action 
could  be  brought. 

Bowler  v.  Eldredge,  Supreme  Court  of  Errors  of  Connec- 
ticut, 1846  (18  Conn.  1). 

Williams,  C.  J.:  .  .  .  The  4th  plea  rests  upon  \-ery  different 
considerations. 

The  defendants  do  not,  in  that,  rely  upon  a  decree  or  order,  the 
correctness  of  which  cannot  be  examined;  but  they  say,  the  facts 
which  exist  will  justify  the  acts  they  have  done;  and  they  offer  to 
prove  these  facts  before  the  court. 

They  say,  this  vessel  was  in  the  legal  custody  and  possession  of 
an  officer  of  the  United  States,  by  virtue  of  legal  process,  and  had 
been  wrongfully  taken  out  of  his  possession;  and  he  therefore  had 
a  right  to  repossess  himself  of  it;  and  this  he  did  through  the  de- 
fendants, who  acted  as  his  servants  and  agents,  and  by  his  authority. 

The  plaintiff,  on  the  other  hand,  contends,  that  if  this  were  so, 
they  had  no  right  to  take  this  property  by  force  out  of  his  possession ; 
that  it  was  in  custody  of  the  law,  and  must  there  remain  until  taken 
out  by  legal  3orocess. 

It  is  not  claimed  that  any  force  was  used  by  the  defendants,  but 
such  as  is  implied  in  every  wrongful  act  of  trespass.  The  words  vi  et 
armis  imply  nothing  more.  3  Burr.  1701,  1731.  The  question 
then  arises,  whether,  if  this  property  has  been  illegally  taken  from 
the  custody  of  the  defendant,  he  may  repossess  himself  of  it. 


SELF-HELP  309 

As  to  real  estate,  there  cannot  be  a  doubt  that  at  common  law,  if 
the  owner  has  been  dispossessed,  he  might,  within  a  reasonable 
time,  if  he  could  prevail  by  fair  means,  enter  by  force  and  take 
possession  of  his  own  estate.    1  Hawk.  PI.  Cr,  ch.  64,  p.  274.     13 
Vin.  Ab.  380.     Co.  Litt.  257,  n.  L     Hyatt  v.  Wood,  4  Johns.  R.  150. 
Ives  V.  Ives,  13  Johns.  R.  237.    And  although,  to  prevent  breaches 
of  the  peace,  and  the  oppression  of  the  weak  by  the  powerful,  forci- 
ble entries  are  by  statute  restrained,   yet   even  at  this  day,  if  a 
tenant  hold  over,  and  the  landlord  takes  possession  by  force  and 
strong  hand,  so  that  he  may  be  indicted  for  a  forcible  entry,  the 
tenant  cannot  treat  him  as  a  trespasser.    Taunton  v.  Costar,  7  Term 
R.  431.    And  in  a  more  recent  case,  where  the  landlord  broke  open 
the  doors  of  the  house  with  a  crowbar,  after  his  tenant's  lease  had 
expired,  no  person  being  in,  and  only  some  of  the  tenant's  furniture 
remaining,  he  was  justified  in  an  action  of  trespass  brought  by  the 
tenant  against  him.     Turner  v.  Meymott,  1  Bing,  158  (8  E.  C.  L. 
280).     And  it  is  said,  by  a  highly  respectable  writer  on  common 
law,  the  force  may  not  be  justifiable;   the  party  may  be  answerable 
for  a  breach  of  the  peace  or  a  forcible  entry;    but  not  in  an  action 
of  trespass,  to  a  party  in  the  wrongful  possession ;  for  the  posses- 
sion is  a  sufficient  ground  to  sustain  an  action  of  trespass  against  a 
wrongdoer.     It  is  otherwise,  when  the  person  entering  shows  a  legal 
title.     Read's  case,  6  Rep.  24,  2  Saund.  47,  c.   Hyatt  v.   Wood,  4 
Johns.  R.  158;    1  Johns.  R.  44.    And  it  is  said,  by  the  author  of 
the  commentaries,  that  where  one  is  deprived  of  his  property  in 
goods  or  chattels  personal,  or  where  one's  wife,  child  or  servant  is 
wrongfully  detained,  the  owner,  husband,  parent  or  master  may  law- 
fully claim  and  retake  them,  wherever  he  happens  to  find  them.     3 
Bla.  Com.  41.     1  Sw.  Dig.  461.    And  a  writer  on  criminal  law,  of 
high  authority,  says,  "It  seems  certain,  that  even  at  this  day,  he  who 
is  wrongfully  dispossessed  of  his  goods,  may  justify  the  retaking  of 
them  by  force,  from  the  wrongdoer,  if  he  refuses  to  redeliver  them ; 
for,  the  violence  which  happens  through  the  resistance  of  the  wrong- 
ful possessor,  being  originally  owing  to  his  own  fault,  gives  him  no 
just  cause  of  complaint,  inasmuch  as  he  might  have  prevented  it  by 
doing  as  he  ought."     1  Hawk.  PI.  Cr.  274,  ch.  64.    Blackstone  and 
other  commentators  very  properly  say,  that  this  may  be  done,  pro- 
vided it  be  not  done  in  a  riotous  manner,  and  not  attended  with  a 
breach  of  the  peace.    They  do  not,  however,  by  this  mean,  that  if  a 
husband  reclaims  his  wife,  or  a  parent  his  child,  or  an  owner  his  goods, 
he  will,  for  such  act,  be  liable  in  an  action  of  trespass  to  the 


310  ORGANIZATION  AND  JURISDICTION 

wrong-doer ;  though  he  might  be  answerable  for  a  breach  of  the  peace. 
Hawkins  explains  this  more  fully  than  the  other  authors  above  cited, 
when  speaking  of  forcible  entry;  for,  says  he,  however  he  may  be 
punishable  at  the  king's  suit,  for  doing  what  is  prohibited  by  stat- 
ute, as  a  contemner  of  the  law  and  disturber  of  the  peace,  he  shall 
not  be  liable  to  pay  any  damages  for  it  to  the  plaintiff,  whose  injus- 
tice gave  him  the  provocation  in  that  manner  to  right  himself.  Ch. 
64,  sect.  2.  And  in  Lee  v.  Atkinson,  Cro.  Jac.  236;  S.  C,  Yelv.  172, 
where  the  owner  of  a  horse  let  it  for  two  days,  and  finding  that  the 
person  who  hired  it  was  going  another  way  than  that  for  which  he 
hired  the  horse,  by  force  retook  the  horse  within  the  two  days;  it 
was  held  that  he  was  not  justified,  not  because  he  might  not  ha\e 
right  to  retake  his  own,  but  he  had  parted  with  the  possession  for 
those  two  days;  thus  recognizing  the  right  of  recapture,  though 
not  under  such  circumstances.  So,  too,  if  a  distress  is  taken  with- 
out cause,  or  contrary  to  law,  before  it  is  impounded :  the  party  may 
rescue  it.  Co.  Litt.  160-1,  3  Bla.  Com.  12.  Cotsworth  x.Betison,  1 
Ld.  Raym.  104;  S.  C,  1  Salk.  247. 

It  is  said,  however,  that  this  property  was  in  custody  of  the  law; 
and,  therefore,  the  defendants  had  no  right  to  reclaim  it  in  this 
way.  That  must  depend  upon  the  other  question,  whether  it  was 
lawfully  detained  by  the  officer;  for  if  not,  his  official  character 
could  not  give  him,  as  against  him  who  had  a  prior  claim,  a  right. 
His  process,  though  good  as  against  the  party,  would  not  give  him 
a  right  to  take  the  goods  of  a  third  person,  or  the  goods  of  this 
person,  out  of  the  lawful  possession  of  another. 

This  court  has  decided  that  a  person  committed  to  prison  under 
an  illegal  process  was  not  accountable,  in  a  public  prosecution,  for 
freeing  himself  from  that  imprisonment,  even  by  a  breach  of  the 
peace.  And  we  are  of  opinion  that  the  marshal  of  New  York, 
having  the  legal  custody  of  this  property  had  a  right  to  repossess 
himself  of  it  when  in  the  hand  of  this  ])laintiff.  We,  therefore,  are 
of  opinion  that  the  4th  plea  is  sufficient ;  and  so  we  advise  the  super- 
ior court. 

In  this  opinion  the  other  judges  concurred. 

Spencer  v.  IMcGowen,  Supreme  Court  of  New  York,  1835 

(13  Wend.  256). 

Error  from  the   Tompkins  C.   P.     Spencer  sued  M'Gowen  and 

Shepard,  in  an  action  of  trespass  for  the  taking  of  a  horse,  which 

had  been  delivered  to  him  Nov.  3,  1830,  as  the  plaintiff"  in  a  writ  of 


SELF-HELP  311 

replevin  issued  against  one  Carter,  The  plaintiff  further  proved 
that  the  horse  in  question  had  been  mortgaged  with  other  property, 
by  Carter,  to  one  M'Cormick,  to  secure  the  payment  of  a  certain 
sum  of  money;  that  the  mortgage  had  been  assigned  to  him,  the 
plaintiff;  that  it  had  become  forfeited;  and  that  by  an  award  of 
arbitrators,  made  in  pursuance  of  a  submission  between  him  and 
Carter,  he  had  a  lien  upon  the  horse.  The  defense  set  up  on  the 
trial  was,  that  Carter  was  a  tenant  of  one  Bloodgood,  and  that 
previous  to  the  issuing  of  the  writ  of  replevin,  to  wit:  Oct.  25,  1830, 
the  horse  in  question  was  taken,  with  other  property,  as  a  distress 
for  rent,  by  M'Gowen  as  the  bailiff  of  the  landlord.  Shepard  was 
the  receiptor  of  the  property,  and  it  was  left  on  the  premises.  The 
horse  having  subsequently  been  delivered  by  the  sheriff  to  Spencer, 
by  virtue  of  the  writ  of  replevin,  Shepard  took  the  horse  from 
Spencer's  stable,  and  delivered  him  to  M'Gowen,  who  sold  him  by 
virtue  of  the  distress  warrant.  The  jury,  under  the  charge  of  the 
court,  found  a  verdict  for  the  defendants,  on  which  judgment  was 
entered.  The  plaintiff  having  excepted  to  the  charge  of  the  court, 
sued  out  a  writ  of  error. 

By  the  Court,  Sutherland,  J. :  It  is  contended  by  the  plaintiff  in 
error,  that  under  the  Act  in  relation  to  the  Action  of  Replevin,  2 
R.  S.,  525,  sec.  13,  etc.,  the  defendants  were  bound  to  have  de- 
manded a  jury  from  the  sheriff  to  try  their  title  to  the  horse,  before 
they  could  summarily  regain  the  possession  of  him.  The  L3th  sec- 
tion provides,  that  if  the  defendant  in  the  action  of  replevin,  or  any 
other  person  who  may  be  in  possession  of  the  goods  and  chattels 
specified  in  the  writ,  shall  claim  property  therein  or  in  any  part 
thereof,  he  may  give  notice  to  the  sheriff  thereof,  and  demand  a 
jury  to  try  his  title.  The  14th  and  15th  sections  regulate  the  mode 
of  proceeding.  The  16th  section  provides  that  if  the  jury  find 
against  the  title  of  the  claimant,  the  sheriff  shall  forthwith  make 
deliverance  to  the  plaintiff  in  replevin.  The  17th  enacts  that  if  the 
jury  find  in  favor  of  the  claimant,  the  sheriff  shall  not  deliver  the 
property  to  the  plaintiff  in  replevin,  unless  he  will  indemnify  him  to 
his  satisfaction,  and  refund  to  the  claimant  the  fees  of  the  sheriff 
and  jury  in  trying  the  title.  These  provisions  are  designed  rather 
for  the  security  and  benefit  of  the  sheriff  than  of  the  party  claim- 
ing the  property;  for  although  the  jury  may  find  in  favor  of  the 
title  of  the  claimant,  the  sheriff  may  still  and  perhaps  must  deliver 
the  property  to  the  plaintiff  in  replevin,  if  he  will  indemnify  him. 
The  person  claiming  title  to  the  property  is  not  prohibited  by  these 


312  ORGANIZATION  AND  JURISDICTION 

provisions  from  taking  any  other  course  to  try  or  enforce  his  right, 
which  upon  general  principles  he  might  have  done  before  this  Act 
was  passed. 

If  the  property  of  A  is  in  the  possession  of  B,  and  is  taken  under 
an  execution  or  a  writ  of  replevin  against  B,  if  A  can  peaceably 
obtain  the  possession  of  it,  and  can  establish  his  title,  tlie  plaintiff 
in  the  execution  or  replevin  cannot  maintain  trespass  against  him. 
A  man  is  never  a  trespasser  in  peaceably  obtaining  possession  of 
his  own  property.  Hyatt  v.  Wood,  3  Johns.,  239;  4  Id.,  150,  313. 
The  defendants  in  this  case  had  a  special  property  in  the  horse,  by 
virtue  of  the  proceedings  under  the  landlord's  warrant,  when  the 
replevin  was  served.  The  replevin  suit  was  not  against  them,  but 
against  the  tenant. 

Moore  v.  Shenk,  Supreme  Court  of  Pennsylvania,  1846 
(3  Pa.  St.  1). 
Gibson,  C.  J. :  .  .  .  But  the  direction  that  the  property  was  not 
revested  in  the  defendant  by  his  demand  of  it  and  offer  to  restore  it, 
because  he  repossessed  himself  of  it  by  force,  was  wrong.  Each 
party  had  expressly  reserved  a  right  to  put  an  end  to  the  bargain 
by  giving  back  what  he  had  received  under  it.  When,  therefore, 
the  defendant  signified  his  determination  to  rescind,  and  tendered 
the  animal  with  the  money  he  had  received,  the  parties  were  ipso 
facto  remitted  to  their  original  rights.  The  remitter  was  so  entire 
that  the  defendant  could  have  maintained  trover  or  replevin  on  the 
wagoner's  refusal  to  deliver.  Was  it  disturbed  or  prevented  by 
any  act  of  force  subsequently  committed  in  regaining  the  possession 
pursuant  to  it?  It  is  true  that  the  right  of  recaption  cannot  be 
pleaded  in  justification  of  violence.  "If,  for  instance,"  says  Sir 
William  Blackstone  (3  Com.  5),  "my  horse  is  taken  away,  and  I 
find  him  in  a  common,  a  faire,  or  a  public  inn,  I  may  lawfully  seize 
him  to  my  own  use:  but  I  cannot  justify  breaking  open  a  private 
stable,  or  entering  on  the  grounds  of  a  third  person  to  take  him, 
but  must  have  recourse  to  an  action  at  law":  in  other  words,  the 
right  of  recaption  will  not  justify  a  collateral  trespass  committed 
in  the  prosecution  of  it.  But  recaption,  being  founded  on  a  title 
already  existing,  is  not  an  act  necessary  to  revest  the  title,  like  an 
entry  on  land  for  a  condition  broken;  but  it  is  a  remedy,  like  an 
action,  to  regain  the  possession  by  virtue  of  a  title  complete.  If  it 
were  the  former,  an  action  could  be  maintained  without  at  least  an 
attempt  at  recaption  precedent  to  it.     The  defendant's  original 


SELF-HELP  313 

title  was  restored  by  the  tender,  and  no  principle  of  the  common 
law  declares  his  illegal  enforcement  of  it  to  be  a  forfeiture  of  it. 
Even  a  right  of  entry  on  land  might  have  originally  been  enforced 
by  violence,  and  possession  thus  gained  be  held  with  a  strong  hand 
(2  Comm.  148) :  it  is  only  by  special  provision  in  the  statutes  of 
forcible  entry  and  detainer,  that  a  party  deforced  may  have  a  writ 
of  restitution.  As  regards  chattels,  the  common  law  principle  is 
unchanged.  Though  the  defendant  could  not  have  defended  him- 
self against  an  action  of  trespass  for  the  force,  he  certainly  can 
defend  himself  against  an  action  for  the  property. 

Harvey  v.  DeWoody,  Supreme  Court  of  Arkansas,  1856 
(18  Ark.  252). 
Hanly,  J.:  ...  The  defense  set  up  in  the  plea  is  a  justifica- 
tion of  the  trespass  complained  of  in  the  declaration.  The  facts  upon 
which  the  justification  is  based  are,  in  substance,  that  the  town 
of  Des  Arc  was,  by  an  act  of  the  Assembly  of  this  State,  approved 
28th  December,  1854,  incorporated:  that,  by  said  act,  the  cor- 
porate powers  of  said  town  were  vested  in  one  mayor  and  four  coun- 
cilmen,  to  be  chosen  in  a  certain  manner  —  that  five  of  the 
defendants  were  elected  under  the  provisions  of  said  charter,  one  as 
mayor,  and  the  other  four  as  councilmen  —  that  at  the  same  elec- 
tion, the  remaining  defendant,  Robinson,  was  elected  and  chosen 
constable  of  said  town :  all  strictly  in  conformity  with  the  provisions 
of  the  act  of  incorporation  ■ — ■  that  all  qualified  in  their  respective 
ofiices,  and  entered  upon  the  discharge  of  the  duties  thereof  —  that, 
at  a  certain  time  named,  it  was  ascertained  that  a  certain  tenement 
or  house  situate  in  said  town,  owned  by  the  plaintiff,  had  become  a 
common  or  public  nuisance,  by  endangering  the  property  and  health 
of  many  of  the  good  citizens  of  said  town  by  its  exposed  condition, 
and  liability  to  take  fire,  and  because  of  the  fact  of  its  being  used 
by  the  public  as  a  privy,  etc.  —  that  it  was  thought  by  them,  in 
their  official  capacity,  that  the  public  health  and  security  to  prop- 
erty in  said  town  required  and  demanded  that  said  house  or  tene- 
ment should  be  declared  a  public  nuisance,  and  be  abated  as  such  — 
that  with  this  view  they  aver  that  on  a  certain  day  and  time  in 
said  plea  named  and  stated,  they  met  in  their  corporate  capacity, 
as  by  law  they  had  a  right  to  do,  and  passed  an  ordinance  declar- 
ing said  house  or  tenement  of  the  plaintiff  a  public  nuisance,  and 
providing  for  its  abatement  by  requiring  the  constable  of  said 
town,   the   defendant   Robinson,    to   notify   the  plaintiff    of    the 


314  ORGANIZATION  AND  JURISDICTION 

proceedings  of  the  defendants  as  mayor  and  council  of  said  to\vn, 
touching  said  house  or  tenement,  and  inform  him  that  should  he 
not  within  thirty  days  next  thereafter  abate  said  nuisance  by 
removing  the  cause  thereof,  that  they  in  their  official  capacity, 
as  mayor,  council  and  constable,  would  abate  the  same  by  tearing 
down  such  house  or  tenement  —  that  said  defendant  Robinson, 
as  such  constable,  gave  the  required  notice  under  said  ordinance 
to  said  plaintiff  —  that  more  than  thirty  days  elapsed  after  such 
notice  was  so  given,  and  the  cause  of  said  nuisance  being  still  unre- 
moved  or  abated  by  said  plaintiff,  under  the  provisions  of  said 
ordinance  the  said  defendant  Robinson  as  constable  proceeded 
to  and  did  pull  down  and  destroy  said  house  or  tenement,  as  the 
only  means  of  abating  said  nuisance,  and  the  plea  avers  that 
this  is  the  same  trespass  of  which  the  plaintiff  complains  in  his 
declaration. 

Under  this  state  of  facts,  which  are  admitted  on  the  record,  it 
may  not  be  unprofitable,  by  way  of  illustrating  our  views,  to 
announce  a  few  principles  of  law,  which  we  regard  as  involved  in 
this  cause. 

A  nuisance,  in  its  common  acceptation,  means,  literally,  annoy- 
ance. In  law  its  signification  is  more  restricted.  According  to 
Blackstone,  it  means  or  signifies,  "anything  that  worketh  hurt, 
inconvenience  or  damage."     See  3  Blacks.  Com.  216. 

Nuisances  are  of  two  kinds:  —  common  or  public,  and  private. 
See  Bac.  Abr.  146. 

The  first  class  is  defined  to  be  such  an  inconvenience  or  trouble- 
some offense  as  annoys  the  whole  community,  in  general,  and  not 
merely  some  particular  person.  See  1  Hawk.  P.  C.  187;  4  Blacks. 
Com.  166-7.  It  is  said  to  be  difficult  to  define  what  degree  of 
annoyance  is  necessary  to  constitute  a  nuisance.  In  relation  to 
trades,  it  seems  that  when  a  trade  renders  the  enjoyment  of  life  or 
property  uncomfortable,  it  becomes  a  nuisance  for  the  reason,  that 
the  neighborhood  have  a  right  to  ha\-e  pure  and  fresh  air.  See  1 
Burr.  333.     2  Car.  &  P.  485;  2  Lord  Raym.  1163.     1  Str.  686. 

The  second  class,  or  private  nuisances,  is  anything  done  to  the 
hurt  or  annoyance  of  the  lands,  tenements  or  hereditaments  of 
another.     See  3  Blacks.  Com.  215.     5  Bac.  Abr.  146. 

For  a  common  or  public  nuisance,  the  usual  remedy  at  law  is  by 
indictment.  For  a  private  nuisance  the  ordinary  remedy  at  law, 
is  case.  See  3  Blacks.  Com.  C.  13;  10  Mass.  R.  72;  7  Pick.  76;  3 
Harr.  &  McH.  441. 


SELF-HELP  315 

Courts  of  chancery  exercise  jurisdiction  both  as  to  common  or 
pubHc,  and  private  nuisances,  by  restraining  persons  frorr:  setting 
them  up,  by  inhibiting  their  continuance,  or  compelhng  their  abate- 
ment.    See  2  Story's  Eq.,  sec.  924,  p.  260. 

As  we  have  said,  both  courts  of  law  and  equity  afford  ample 
redress,  and  sufficiently  prompt  remedies  in  case  of  nuisances. 
But  it  seems  the  law  is  not  satisfied  with  these,  as  affording  full  pro- 
tection to  the  public  or  citizen,  in  many  cases,  for  it  is  generally 
conceded  that  any  person  may  abate  a  public  nuisance.  See  2  Salk. 
458.  5  Bac.  Abr.  152.  3  Id.  498.  And  it  seems  that  this  right 
extends  as  well  to  private  as  to  common  or  public  nuisances.  See  5 
Bac.  Abr.  uhi  sup.  2  Bouv.  Law.  Die,  3-2,  p.  18.  2  Barn.  & 
Cress.  311.     3  Dowl.  &  R.  556. 

A  public  nuisance  may  be  abated  without  notice  (2  Salk.  458): 
and  so  may  a  private  nuisance,  which  arises  by  an  act  of  com- 
mission. And  where  the  security  of  lives  or  property  may  require 
so  speedy  a  remedy  as  not  to  allow  time  to  call  on  the  person  on 
whose  property  the  mischief  has  arisen  to  remedy  it,  an  individual 
would  be  justified  in  abating  a  nuisance  from  omission  without 
notice.     2  Barn.  &  Cress.  311.     3  Dowl.  &  R.  556,  as  above. 

As  to  private  nuisances,  it  has  been  held,  that  if  a  man  in  his  own 
soil  erect  a  thing  which  is  a  nuisance  to  another,  the  party  injured 
may  enter  the  soil  of  the  other  and  abate  the  nuisance,  and  justify, 
the  trespass.     See  9  Mass.  R.  316.     4  Conn.  418.     5  Id.  210.     4  N. 
H.  R.  527. 

Distress  for  rent  has  been  greatly  modified  or  abolished  by  statute  in  most 
American  jurisdictions.  Distress  of  cattle  damage  feasant  has  also  been  modi- 
fied or  regulated  by  statutes  (commonly  known  as  the  Herd  Law  in  many  juris- 
dictions), but  is  generally  permitted. 

Entry  and  Seizure  are  now  obsolete. 

Blackstone,  Commentaries,  III,  18. 

The  remedies  for  private  wrongs  which  are  effected  by  the  mere 
operation  of  the  law  will  fall  within  a  very  narrow  compass;  there 
being  only  two  instances  of  this  sort  that  at  present  occur  to  my 
recollection :  the  one  that  of  retainer,  where  a  creditor  is  made  exec- 
utor or  administrator,  to  his  debtor;  the  other  in  the  case  of  what 
the  law  calls  a  remitter. 

L  If  a  person  indebted  to  another  makes  his  creditor  or  debtee 
his  executor,  or  if  such  a  creditor  obtains  letters  of  administration 
to  his  debtor;    in  these  cases  the  law  gives  him  a  remedy  for  his 


316  ORGANIZATION  AND  JURISDICTION 

debt  by  allowing  him  to  retain  so  much  as  will  pay  himself,  before 
any  other  creditors  whose  debts  are  of  equal  degree.  This  is  a 
remedy  by  the  mere  act  of  law,  and  grounded  upon  this  reason: 
that  the  executor  cannot,  without  an  apparent  absurdity,  commence 
a  suit  against  himself,  as  a  representative  of  the  deceased,  to  recover 
that  which  is  due  to  him  in  his  own  private  capacity:  but,  having 
the  whole  personal  estate  in  his  hands,  so  much  as  is  sufficient  to 
answer  his  own  demand  is,  by  operation  of  law,  applied  to  that  par- 
ticular purpose.  Else,  by  being  made  executor,  he  would  be  put  in 
a  worse  condition  than  all  the  rest  of  the  world  besides.  For  though 
a  ratable  payment  of  all  the  debts  of  the  deceased,  in  equal  degree, 
is  clearly  the  most  equitable  method,  yet,  as  every  scheme  for  a 
proportionable  distribution  of  the  assets  among  all  the  creditors 
hath  been  hitherto  found  to  be  impracticable,  and  productive  of 
more  mischiefs  than  it  would  remedy,  so  that  the  creditor  who  first 
commences  his  suit  is  entitled  to  a  preference  in  payment;  it  fol- 
lows that,  as  the  executor  can  commence  no  suit,  he-must  be  paid 
the  last  of  any,  and  of  course  must  lose  his  debt,  in  case  the  estate 
of  his  testator  is  insolvent,  unless  he  be  allowed  to  retain  it.  The 
doctrine  of  retainer  is  therefore  the  necessary  consequence  of  that 
other  doctrine  of  the  law,  the  priority  of  such  creditor  who  first 
commences  his  action.  But  the  executor  shall  not  retain  his  own 
debt,  in  prejudice  to  those  of  a  higher  degree;  for  the  law  only 
puts  him  in  the  same  situation  as  if  he  had  sued  himself  as  executor 
and  recovered  his  debt;  which  he  nev^er  could  be  supposed  to  have 
done  while  debts  of  a  higher  nature  subsisted.  Neither  shall  one 
executor  be  allowed  to  retain  his  own  debt  in  prejudice  to  that  of 
his  co-executor  in  equal  degree;  but  both  shall  be  discharged  in 
proportion.  Nor  shall  an  executor  of  his  own  wrong  be  in  any  case 
permitted  to  retain. 

II.  Remitter  is  where  he  who  hath  the  true  property  or  jus  pro- 
prietatis  in  lands,  but  is  out  of  possession  thereof,  and  hath  no  right 
to  enter  without  recov^ering  possession  in  an  action,  hath  afterwards 
the  freehold  cast  upon,  him  by  some  subsequent,  and  of  course 
defective,  title;  in  this  case  he  is  remitted,  or  sent  back  by  opera- 
tion of  law,  to  his  ancient  and  more  certain  title.  The  right  of 
entry,  which  he  hath  gained  by  a  bad  title,  shall  be  ipso  facto  annexed 
to  his  own  inherent  good  one:  and  his  defeasible  estate  sliall  be 
utterly  defeated,  and  annulled,  by  the  instantaneous  act  of  law, 
without  his  participation  or  consent.  As  if  A.  disseizes  B.,  that  is, 
turns  him  out  of  possession,  and  dies,  leaving  a  son  C;  hereby  the 


SELF-HELP  317 

estate  descends  to  C,  the  son  of  A.,  and  B.  is  barred  from  entering 
thereon  till  he  proves  his  right  in  an  action;  now,  if  afterwards  C, 
the  heir  of  the  disseizor,  makes  a  lease  for  life  to  D.,  with  remainder 
to  B.,  the  disseizee  for  life,  and  D.  dies;  hereby  the  remainder 
accrues  to  B.,  the  disseizee:  who,  thus  gaining  a  new  freehold  by- 
virtue  of  the  remainder,  which  is  a  bad  title,  is  by  act  of  law  re- 
mitted, or  in  of  his  former  and  surer  estate.  For  he  hath  hereby 
gained  a  new  right  of  possession,^  to  which  the  law  immediately 
annexes  his  ancient  right  of  property. 

If  the  subsequent  estate,  or  right  of  possession,  be  gained  by  a 
man's  own  act  or  consent,  as  by  immediate  purchase,  being  of  full 
age,  he  shall  not  be  remitted.  For  the  taking  such  subsequent 
estate  was  his  own  folly,  and  shall  be  looked  upon  as  a  waiver  of  his 
prior  right.  Therefore  it  is  to  be  observed,  that  to  every  remitter 
there  are  regularly  these  incidents:  an  ancient  right,  and  a  new 
defeasible  estate  of  freehold,  uniting  in  one  and  the  same  person; 
which  defeasible  estate  must  be  cast  upon  the  tenant,  not  gained  by 
his  own  act  or  folly.  The  reason  given  by  Littleton,  why  this  rem- 
edy, which  operates  silently,  and  by  the  mere  act  of  law,  was  allowed, 
is  somewhat  similar  to  that  given  in  the  preceding  article;  because 
otherwise  he  who  hath  right  would  be  deprived  of  all  remedy.  For, 
as  he  himself  is  the  person  in  possession  of  the  freehold,  there  is  no 
other  person  against  whom  he  can  bring  an  action,  to  establish  his 
prior  right.  And  for  this  cause  the  law  doth  adjudge  him  in  by 
remitter;  that  is,  in  such  plight  as  if  he  had  lawfully  recovered  the 
same  land  by  suit.  For,  as  lord  Bacon  observes,  the  benignity  of 
the  law  is  such,  as  when,  to  preserve  the  principles  and  grounds  of 
law,  it  depriveth  a  man  of  his  remedy  without  his  own  fault,  it  will 
rather  put  him  in  a  better  degree  and  condition  than  in  a  worse. 
Nam  quod  remedio  destitiiitur ,  ipsa  re  ■valet,  si  culpa  ahsit.  But 
there  shall  be  no  remitter  to  a  right  for  which  the  party  has  no  rem- 
edy by  action :  as  if  the  issue  in  tail  be  barred  by  the  fine  or  warranty 
of  his  ancestors,  and  the  freehold  is  afterwards  cast  upon  him,  he 
shall  not  be-  remitted  to  his  estate-tail :  for  the  operation  of  the 
remitter  is  exactly  the  same,  after  the  union  of  the  two  rights,  as  that 
of  a  real  action  would  have  been  before  it.  As  therefore  the  issue 
in  tail  could  not  by  any  action  have  recovered  his  ancient  estate,  he 
shall  not  recover  it  by  remitter. 

And  thus  much  for  these  extrajudicial  remedies,  as  well  for  real 
as  personal  injuries,  which  are  furnished  or  permitted  by  the  law, 
where  the  parties  are  so  peculiarly  circumstanced  as  not  to  make  it 


318  ORGANIZATION  AND  JURISDICTION 

eligible  or  in  some  cases  even  possible,  to  apply  for  redress  in  the 
usual  and  ordinar>-  methods  to  the  courts  of  public  justice. 

Remitter  is  now  obsolete. 


2.  COURTS  IN  GENERAL! 

Blackstone,  Commentaries,' III,  22. 

The  next,  and  principal,  object  of  our  inquiries  is  the  redress  of 
injuries  by  suit  in  courts:  wherein  the  act  of  the  parties  and  the  act 
of  law  co-operate ;  the  act  of  the  parties  being  necessary  to  set  the 
law  in  motion,  and  the  process  of  the  law  being  in  general  the  only 
instrument  by  which  the  parties  are  enabled  to  procure  a  certain 
and  adequate  redress. 

And  here  it  will  not  be  improper  to  observe,  that  although,  in  the 
several  cases  of  redress  by  the  act  of  the  parties  mentioned  in  a  for- 
mer chapter,  the  law  allows  an  extrajudicial  remedy,  >'et  that  does 
not  exclude  the  ordinary  course  of  justice:  but  it  is  only  an  addi- 
tional weapon  put  into  the  hands  of  certain  persons  in  particular 
instances,  where  natural  equity  or  the  peculiar  circumstances  of  their 
situation  required  a  more  expeditious  remedy  than  the  formal  process 
of  any  court  of  judicature  can  furnish.  Therefore,  though  I  may 
defend  m>^self,  or  relations,  from  external  violence,  I  yet  am  after- 
wards entitled  to  an  action  of  assault  and  battery:  though  I  may 
retake  my  goods  if  I  have  a  fair  and  peaceable  opportunity,  this 
power  of  recaption  does  not  debar  me  from  an  action  of  trover  or 
detinue:  I  may  either  enter  on  the  lands  on  which  I  have  a  right  of 
entry  or  may  demand  possession  by  a  real  action ;  I  may  cither  abate 
a  nuisance  by  my  own  authority,  or  call  upon  the  law  to  do  it  for 
me:  I  may  distrain  for  rent,  or  have  an  action  of  debt,  at  my  own 
option:  if  I  do  not  distrain  my  neighbor's  cattle  damage-feasant,  I 
may  compel  him  by  action  of  trespass  to  make  me  a  fair  satisfaction: 
if  a  heriot,  or  a  deodand,  be  withheld  from  me  by  fraud  or  force, 
I  may  reco\'er  it  though  I  ne\er  seized  it.  And  with  regard  to 
accords  and  arbitrations,  these,  in  their  nature  being  merely  an 
agreement  or  compromise,  most  indisputably  su])])()se  a  pre\-ious 
right  of  obtaining  redress  some  other  way;  which  is  given  up  by 
such  agreement.     But  as  to  remedies  by  the  mere  operation  of  law, 

1  On  the  organization  of  courts  in  America,  see  Baldwin,  The  American  Judi- 
ciary, Chaps.  VIII  and  IX. 


I 


COURTS  IN  GENERAL  319 

those  are  Indeed  given,  because  no  remedy  can  be  ministered  by  suit 
or  action,  without  running  into  the  palpable  absurdity  of  a  man's 
bringing  action  against  himself;  the  two  cases  wherein  they  happen 
being  such  wherein  the  only  possible  legal  remedy  would  be  directed 
against  the  very  person  himself  who  seeks  relief. 

In  all  other  cases  it  is  a  general  and  indisputable  rule,  that  where 
there  is  a  legal  right  there  is  also  a  legal  remedy,  by  suit  or  action 
at  law,  whenever  that  right  is  invaded.  And  in  treating  of  these 
remedies  by  suit  in  courts,  I  shall  pursue  the  following  method: 
first,  I  shall  consider  the  nature  and  several  species  of  courts  of 
justice;  and,  secondly,  I  shall  point  out  in  which  of  these  courts, 
and  in  what  manner,  the  proper  remedy  may  be  had  for  any  private 
injury;  or,  in  other  words,  what  injuries  are  cognizable,  and  how 
redressed,  in  each  respective  species  of  courts. 

First,  then,  of  courts  of  justice.  And  herein  we  will  consider, 
first,  their  nature  and  incidents  in  general;  and  then,  the  several 
species  of  them,  erected  and  acknowledged  by  the  laws  of  England. 

A  court  is  defined  to  be  a  place  wherein  justice  is  judicially  admin- 
istered. And,  as  by  our  excellent  constitution  the  sole  executive 
power  of  the  laws  is  vested  in  the  person  of  the  king,  it  will  follow 
that  all  courts  of  justice  which  are  the  medium  by  which  he  admin- 
isters the  laws,  are  derived  from  the  power  of  the  crown.  For, 
whether  created  by  act  of  parliament,  or  letters-patent,  or  subsist- 
ing by  prescription,  (the  only  methods  by  which  any  court  of  judica- 
ture can  exist,)  the  king's  consent  in  the  two  former  is  expressly, 
and  in  the  latter  impliedly,  given.  In  all  these  courts  the  king  is 
supposed  in  contemplation  of  law  to  be  always  present ;  but,  as  that 
is  in  fact  impossible,  he  is  there  represented  by  his  judges,  whose 
power  is  only  an  emanation  of  the  royal  prerogative. 

For  the  more  speedy,  universal,  and  impartial  administration  of 
justice  between  subject  and  subject,  the  law  hath  appointed  a  pro- 
digious variety  of 'courts,  some  with  a  more  limited,  others  with  a 
more  extensive,  jurisdiction;  some  constituted  to  inquire  onh',  others 
to  hear  and  determine ;  some  to  determine  in  the  first  instance,  others 
upon  appeal  and  by  way  of  review.  All  these  in  their  turns  will  be 
taken  notice  of  in  their  respective  places :  and  I  shall  therefore  here 
only  mention  one  distinction,  that  runs  throughout  them  all,  viz., 
that  some  of  them  are  courts  of  record,  others  not  of  record.  A 
court  of  record  is  that  where  the  acts  and  judicial  proceedings  are 
enrolled  in  parchment  for  a  perpetual  memorial  and  testimony: 
which  rolls  are  called  the  records  of  the  court  and  are  of  such  high 


320  ORGANIZATION  AND  JURISDICTION 

and  supereminent  authority  that  their  truth  is  not  to  be  called  in 
question.  For  it  is  a  settled  rule  and  maxim  that  nothing  shall  be 
averred  against  a  record,  nor  shall  any  plea,  or  even  proof,  be 
admitted  to  the  contrary.  And  if  the  existence  of  a  record  be  denied, 
it  shall  be  tried  by  nothing  but  itself;  that  is,  upon  bare  inspection, 
whether  there  be  any  such  record  or  no;  else  there  would  be  no  end 
of  disputes.  But,  if  there  appear  any  mistake  of  the  clerk  in  making 
up  such  record,  the  court  will  direct  him  to  amend  it.  All  courts 
of  record  are  the  king's  courts,  in  right  of  his  crown  and  royal  dig- 
nity, and  therefore  no  other  court  hath  authority  to  fine  or  imprison; 
so  that  the  very  erection  of  a  new  jurisdiction  with  the  power  of 
fine  or  imprisonment  makes  it  instantly  a  court  of  record.  A  court 
not  of  record  is  the  court  of  a  private  man;  whom  the  law  will  not 
entrust  with  any  discretionary  power  over  the  fortune  or  liberty 
of  his  fellow  subjects.  Such  are  the  courts-baron  incident  to  every 
manor,  and  other  inferior  jurisdictions:  where  the  proceedings  are 
not  enrolled  or  recorded;  but  as  well  their  existence  as  the  truth  of 
the  matters  therein  contained  shall,  if  disputed,  be  tried  and  deter- 
mined by  a  jury.  These  courts  can  hold  no  plea  of  matters  cog- 
nizable by  the  common  law,  unless  under  the  value  of  40s.,  nor  of 
any  forcible  injury  whatsoever,  not  having  any  process  to  arrest 
the  person  of  the  defendant. 

In  every  court  there  must  be  at  least  three  constituent  parts,  the 
actor,  reus,  and  judex:  the  actor,  or  plaintiff,  who  complains  of  an 
injury  done;  the  reus,  or  defendant,  who  is  called  upon  to  make 
satisfaction  for  it;  anci  the  judex,  or  judicial  power,  which  is  to 
examine  the  truth  of  the  fact,  to  determine  the  law  arising  upon  that 
fact,  and,  if  any  injury  appears  to  have  been  done,  to  ascertain,  and 
by  its  officer  to  apply,  the  remedy.  It  is  also  usual  in  the  superior 
courts  to  have  attorneys,  and  advocates  or  counsel,  as  assistants.^ 

An  attorney  at  law  answers  to  the  procurator,  or  proctor,  of  the 
civilians  and  canonists.  And  he  is  one  who  is-  put  in  the  place, 
stead,  or  turn  of  another,  to  manage  his  matters  of  law.  Formerly 
every  suitor  was  obliged  to  appear  in  person,  to  prosecute  or  defend 
his  suit  (according  to  the  old  Gothic  constitution)  unless  by  special 
license  under  the  king's  letters-patent.  This  is  still  the  law  in 
criminal  cases.  And  an  idiot  cannot  to  this  day  appear  by  attor- 
ney, but  in  person;  for  he  hath  not  discretion  to  enable  him  to 

1  On  the  profession  of  advocate  or  counsellor,  reference  may  be  made  to  For- 
syth, Horlensius,  or  the  Advocate. 


COURTS  IN  GENERAL  321 

appoint  a  proper  substitute:  and  upon  his  being  brought  before  the 
court  in  so  defenseless  a  condition,  the  judges  are  bound  to  take  care 
of  his  interests,  and  they  shall  admit  the  best  plea  in  his  behalf  that 
any  one  present  can  suggest.  But,  as  in  the  Roman  law,  ^'cum  olim 
in  usii  fuisset,  alteriiis  nomine  agi  non  posse,  sed,  quia  hoc  non  mini- 
mam  incommoditatem  habebat,  coeperunt  homines  per  procuratores 
litigare,"  so  with  us,  upon  the  same  principle  of  convenience,  it  is 
now  permitted  in  general,  by  divers  ancient  statutes,  whereof  the 
first  is  statute  Westm.  3,  c.  10,  that  attorney  may  be  made  to  prose- 
cute or  defend  any  action  in  the  absence  of  the  parties  to  the  suit. 
These  attorneys  are  now  formed  into  a  regular  corps;  they  are 
admitted  to  the  execution  of  their  ofifice  by  the  superior  courts  of 
Westminster  Hall,  and  are  in  all  points  officers  of  the  respective 
courts  of  which  they  are  admitted;  and,  as  they  have  many  priv- 
ileges on  account  of  their  attendance  there,  so  they  are  peculiarly 
subject  to  the  censure  and  animadversion  of  the  judges.  No  man 
can  practice  as  an  attorney  in  any  of  those  courts,  but  such  as  is 
admitted  and  sworn  an  attorney  of  that  particular  court:  an  attor- 
ney of  the  court  of  king's  bench  cannot  practise  in  the  court  of 
common  pleas ;  nor  vice  versa.  To  practise  in  the  court  of  chancery 
it  is  also  necessary  to  be  admitted  a  solicitor  therein:  and  by  the 
statute  22  Geo.  II.,  c.  40,  no  person  shall  act  as  an  attorney  at  the 
court  of  quarter-sessions  but  such  as  has  been  regularly  admitted  in 
some  superior  court  of  record.  So  early  as  the  statute  4  Henry  IV. 
c.  18,  it  was  enacted,  that  attorneys  should  be  examined  by  the 
judges,  and  none  admitted  but  such  as  were  virtuous,  learned,  and 
sworn  to  do  their  duty.  And  many  subsequent  statutes  have  laid 
them  under  further  regulations. 

Of  advocates,  or  (as  we  generally  call  them)  counsel,  there  are 
two  species  or  degrees:  barristers,  and  Serjeants.^  The  former  are 
admitted  after  a  considerable  period  of  study,  or  at  least  standing, 
in  the  inns  of  court ;  and  are  in  our  old  books  styled  apprentices, 
apprenticii  ad  legem,  being  looked  upon  as  merely  learners,  and  not 
qualified  to  execute  the  full  office  of  an  advocate  till  they  were 
sixteen  years  standing,  at  which  time,  according  to  Fortesque,  they 
might  be  called  to  the  state  and  degree  of  Serjeants,  or  servientes 
ad  legem.  How  ancient  and  honorable  this  state  and  degree  is, 
with  the  form,  splendor,  and  profits  attending  it,  hath  been  so  fully 
displayed  by  many  learned  writers,  that  it  need  not  be  here  enlarged 

^  See  Pulling,  The  Order  of  the  Coif. 


322  ORGANIZATION  AND  JURISDICTION 

on.    I  shall  only  observe,  that  Serjeants  at  law  are  bound  by  a  sol- 
emn oath  to  do  their  duty  to  their  clients :  and  that  by  custom  the 
judges  of  the  courts  of  Westminster  are  always  admitted  into  this 
venerable  order  before  they  are  advanced  to  the  bench ;  the  original 
of  which  was  probably  to  qualify  the  puisne  barons  of  the  exche- 
quer to  become  justices  of  assize,  according  to  the  exigence  of  the 
statute  of  14  Edw.  III.  c.  16.     From  both  these  degrees  some  are 
usually  selected  to  be  his  majesty's  counsel  learned  in  the  law;   the 
two  principal  of  whom  are  called  his  attorney  and  solicitor-general. 
The  first  king's  counsel  under  the  degree  of  serjeant  was  Sir  Francis 
Bacon,  who  was  made  so  honoris  causa,  without  either  patent  or 
fee;   so  that  the  first  of  the  modern  order  (who  are  now  the  sworn 
servants  of  the  crown,  with  a  standing  salary)  seems  to  have  been 
Sir  Francis  North,  afterwards  lord-keeper  of  the  great  seal  to  king 
Charles  II.    These  king's  counsel  answer,  in  some  measure,  to  the 
advocates  of  the  revenue,  advocati  fisci,  among  the  Romans.     For 
they  must  not  be  employed  in  any  cause  against  the  crown  without 
special  license;    in  which  restriction  they  agree  with  the  advocates 
of  the  fisc:   but  in  the  imperial  law  the  prohijjition  was  carried  still 
further,  and  perhaps  was  more  for  the  dignity  of  the  sovereign; 
for,  excepting  some  peculiar  causes,  the  fiscal  advocates  were  not 
permitted  to  be  at  all  concerned  in  private  suits  between  subject 
and  subject.     A  custom  has  of  late  years  prevailed  of  granting 
letters-patent  of  precedence  to  such  barrister  as  the  crown  thinks 
proper  to  honor  with  that  mark  of  distinction:    whereby  they  are 
entitled  to  such  rank  and  preaudience  as  are  assigned   in  their 
respective  patents;    sometimes  next  after  the  king's  attorney-gen- 
eral, but  usually  next  after  his  majesty's  counsel  then  being.    These 
(as  well  as  the  queen's  attorney  and  solicitor-general)  rank  pro- 
miscuously with  the  king's  counsel  and  together  with  them  sit  with- 
in the  bar  of  the  respective  courts;   but  recei\'e  no  salaries,  and  are 
not  sworn,  and  therefore  are  at  liberty  to  be  retained  in  causes 
against  the  crown.    And  all  other  Serjeants  and  barristers  indiscrimi- 
nately (except  in  the  court  of  common  jileas,  where  only  Serjeants 
are  admitted)  may  take  upon  them  the  protection  and  defense  of 
any  suitors,  whether  plaintiff  or  defendant ;  who  are  therefore  called 
their  clients,  like  the  dependents  upon  the  ancient  Roman  orators. 
Those  indeed  practised  gratis,  for  honor  merely,  or  at  most  for  the 
sake  of  gaining  influence:    and  so  likewise  it  is  established  with  us, 
that  a  counsel  can  maintain  no  action  for  his  fees;    which   are 
given,   not   as  locatio  vel  condiictio,   but  as  quiddam  honorarium; 


COURTS  IN  GENERAL  323 

not  as  a  salary  or  hire,  but  as  a  mere  gratuity,  which  a  counsellor 
cannot  demand  without  doing  wrong  to  his  reputation:  as  is  also 
laid  down  with  regard  to  advocates  in  the  civil  law,  whose  hono- 
rarium was  directed  by  a  decree  of  the  senate  not  to  exceed  in  any 
case  ten  thousand  sesterces,  or  about  80/  of  English  money.  And, 
in  order  to  encourage  due  freedom  of  speech  in  the  lawful  defense 
of  their  clients,  and  at  the  same  time  to  give  a  check  to  the  unseemly 
licentiousness  of  prostitute  and  illiberal  men  (a  few  of  whom  may 
sometimes  insinuate  themselves  even  into  the  most  honorable  pro- 
fessions) it  hath  been  holden  that  a  counsel  is  not  answerable  for 
any  matter  by  him  spoken  relative  to  the  cause  in  hand  and  sug- 
gested in  his  client's  instructions,  although  it  should  reflect  upon 
the  reputation  of  another,  and  even  prove  absolutely  groundless; 
but  if  he  mentions  an  untruth  of  his  own  invention,  or  even  upon 
instructions,  if  it  be  impertinent  to  the  cause  in  hand,  he  is  then 
liable  to  an  action  from  the  party  injured.  And  counsel  guilty  of 
deceit  or  collusion  are  punishable  by  the  statute  Westm.  1,  3  Edw.  I, 
c.  28,  with  imprisonment  for  a  year  and  a  day,  and  perpetual 
silence  in  the  courts;  a  punishment  still  sometimes  inflicted  for 
gross  misdemeanors  in  practice. 

The  strict  and  correct  designations  of  members  of  the  legal  profession  are: 

Counsel  (Counsellor  at  Law),  when  before  the  court  trying  a  cause,  arguing 
matter  of  law,  or  applying  for  orders. 

Attorney  at  Law,  in  actions  at  or  courts  of  law. 

Solicitor  in  Chancery,  in  suits  in  or  courts  of  equity. 

Proctor,  in  proceedings  in  or  courts  of  admiralty. 

In  England,  the  profession  is  divided  into  two  branches,  counsel  being  called 
Barristers,  and,  in  recent  times,  the  other  branch  of  the  profession,  Solicitors. 

In  the  United  States  all  members  of  the  profession  are  both  attorneys  and 
counsellors;    but  the  term  Solicitor  is  frequently  used  where  there  are  separate 
courts  of  equity  and  in  the  federal  courts.^ 
* 

Von  Schmidt  v.  Wilber,  Supreme  Court  of  C.auifornia, 
1893  (99  Cal.  511). 
Harrison,  J.:  .  .  .  A  court  is  a  tribunal  presided  over  by  one 
or  more  judges,  for  the  exercise  of  such  judicial  power,  as  has  been 
conferred  upon  it  by  law.  Blackstone,  following  Coke,  defines  it  as 
"a  place  where  justice  is  judicially  administered,"  (3  Bl.  Comm. 
23) ;  but  it  is  also  essential  that  this  place  be  designated  by  law,  and 

1  On  the  history  of  the  legal  profession  in  the  United  States,  reference  may  be 
made  to  Warren,  History  of  the  American  Bar. 


324  ORGANIZATION  AND  JURISDICTION 

that  the  person  or  persons  who  are  authorized  to  administer  justice 
be  at  that  place  for  the  purpose  of  administering  justice  at  such 
times  as  may  be  also  designated  by  law.  Tlie  times  fixed  by  law 
for  the  transaction  of  judicial  business  are  called  "terms,"  and  the 
periods  between  the  end  of  one  term  and  the  beginning  of  the  next 
are  called  "vacations."  These  "terms"  vary  in  different  jurisdic- 
tions according  to  the  statutes  by  which  they  are  fixed;  in  some 
states  ending  at  fixed  dates,  and  in  others  continuing  until  the  com- 
mencement of  a  succeeding  term.  Formerly,  in  England,  there 
were  four  t^rms  of  court  in  each  year,  and  their  duration  was  so 
fixed  that  there  were  only  91  days  in  each  year  during  which  the 
courts  could  be  in  session.  As  the  judicial  business  increased,  it 
became  impossible  to  transact  it  all  within  these  periods  of  time, 
and  there  grew  up  the  practice  of  hearing  many  matters  "out  of 
court"  with  the  same  effect  as  if  heard  while  the  court  was  in  ses- 
sion; but  the  matters  which  were  thus  heard  were  only  such  as 
pertained  to  causes  pending  in  court,  and  which  were  of  a  nature 
to  expedite  or  facilitate  the  judicial  disposition  of  the  pending 
cause,  to  which  they  were  merely  subsidiary  or  collateral.  At  a 
later  day  the  practice  arose  of  hearing  and  disposing  of  such  matters 
at  certain  hours  during  "term  time"  while  the  court  was  not  in 
formal  session,  and  subsequently  certain  hours  of  each  day  were 
fixed,  at  which  one  of  the  judges  would  hear  these  matters  while 
the  court  was  actually  in  session.  The  motions  and  orders  thus 
made  were  said  to  be  heard  and  disposed  of  "at  chambers,"  for  the 
reason  that  they  were  heard  by  the  judge  at  his  chambers,  rathet 
than  in  the  court  room,  but  the  term  "chambers"  finally  became 
extended  so  as  to  include  any  place,  either  in  or  out  of  the  court 
room,  at  which  a  judge  may  hear  applications  or  make  orders  while 
the  court  is  not  in  session,  in  matters  pending  in  that  court.  The 
distinction  between  those  matters  which  could  b^  heard  in  court 
and  those  which  could  be  heard  at  chambers  arose  from  convenience, 
rather  than  from  any  other  cause,  but  they  were  limited  to  the  sub- 
sidiary and  incidental  steps  in  practice  and  procedure,  leaving  to 
the  Court  the  judicial  determination  of  the  issues. presented  by  the 
pleadings,  and  which  formed  a  part  of  the  record.  The  term 
"court,"  as  used  in  the  Code  of  Civil  Procedure,  means  sometimes 
the  place  where  the  court  is  held,  sometimes  the  tribunal  itself, 
and  sometimes  the  individual  presiding  over  the  tribunal,  and  in 
many  cases  is  used  synonymously,  as  well  as  interchangeably,  with 
"judge";  and  whether  the  act  is  to  le  performed  by  the  one  or  the 


COURTS  IN  GENERAL  325 

other  is  generally  to  be  determined  by  the  character  of  the*  act, 
rather  than  by  such  designation.  Section  166  provides  that  a  judge 
"may,  at  chambers,  grant  all  orders  and  writs  which  are  usually 
granted  in  the  first  instance,  upon  an  ex  parte  application";  and 
section  1004  provides  that  orders  made  out  of  court  may  be  made 
by  the  judge  of  the  court  in  any  part  of  the  state.  Prior  to  the  adop- 
tion of  the  present  constitution  there  were  fixed  terms  in  this  state 
for  the  transaction  of  judicial  business  by  the  several  district  courts, 
and  any  act  done  by  a  court  after  its  term  had  ended  was  void.  Bates 
V.  Gage,  40  Cal.  183.  Upon  the  adoption  of  the  present  constitu- 
tion, all  terms  of  court  were  abolished,  and  by  its  provisions  (article 
6,  5)  the  superior  courts  are  always  open,  and  (section  6)  in  San 
Francisco  there  may  be  as  many  sessions  of  said  court  at  the  same 
time  as  there  are  judges  thereof;  and  "the  judgments,  orders  and 
proceedings  of  any  session  of  the  superior  court,  held  by  any  one  or 
more  of  the  judges  of  said  courts  respectively,  shall  be  equally 
effectual  as  if  all  the  judges  of  said  respective  courts  presided  at 
such  session."  Under  the  present  constitution  of  this  state,  there- 
fore, whenever  a  judge  of  the  superior  court  is  present  at  the  place 
designated  for  the  transaction  of  judicial  business,  and  there  assumes 
to  transact  such  business,  his  acts  may  be  considered  as  the  acts 
of  the  court  of  which  he  is  a  judge. 

Blackstone,  Commentaries,  III,  275. 

These  terms  are  supposed  by  Mr.  Selden  to  have  been  instituted 
by  William  the  Conqueror;  but  Sir  Henry  Spelman  hath  clearly 
and  learnedly  shown,  that  they  were  gradually  formed  from  the 
canonical  constitutions  of  the  church ;  being  indeed  no  other  than 
those  leisure  seasons  of  the  year  which  were  not  occupied  by  the 
great  festivals  or  fasts,  or  which  were  not  liable  to  the  general 
avocations  of  rural  business.  Throughout  all  Christendom,  in  very 
early  times,  the  whole  year  was  one  continual  term  for  hearing  and 
deciding  causes.  For  the  Christian  magistrates,  to  distinguish 
themselves  from  the  heathens,  who  were  extremely  superstitious 
in  the  observation  of  their  dies  fasti  et  nefasti,  went  into  a  contrary 
extreme  and  administered  justice  upon  all  days  alike,  till  at 
length  the  church  interposed  and  exempted  certain  holy  seasons 
from  being  profaned  by  the  tumult  of  forensic  litigations.  As, 
particularly,  the  time  of  Advent  and  Christmas,  which  gave  rise 
to  the  winter  vacation;  the  time  of  Lent  and  Easter,  which  created 
that  in  the  spring;  the  time  of  Pentecost,  which  produced  the  third; 


326  ORGANIZATION  AND  JURISDICTION 

and  *he  long  vacation  between  Midsummer  and  Michaelmas,  which 
was  allowed  for  the  hay-time  and  harvest.  All  Sundays  also,  and 
some  particular  festivals,  as  the  days  of  the  purification,  ascension, 
and  some  others,  were  included  in  the  same  prohibition;  which  was 
established  by  a  canon  of  the  church,  A.  D.  517;  and  was  fortified 
by  an  imperial  constitution  of  the  younger  Theodosius,  comprised 
in  the  Theodosian  code. 

Afterwards,  w^hen  our  own  legal  constitution  came  to  be  settled, 
the  commencement  and  duration  of  our  law-terms  were  appointed 
with  an  eye  to  those  canonical  prohibitions;  and  it  was  ordered  by 
the  laws  of  King  Edward  the  Confessor,  that  from  Advent  to  the 
octave  of  the  Epiphany,  from  Septuagesima  to  the  octave  of  Easter, 
from  the  ascension  to  the  octave  of  Pentecost,  and  from  three  in 
the  afternoon  of  all  Saturdays  till  Monday  morning,  the  peace  of 
God  and  of  holy  church  shall  be  kept  throughout  all  the  kingdom. 
And  so  extravagant  was  afterwards  the  regard  that  was  paid  to 
these  holy  times,  that  though  the  author  of  the  Mirror  mentions 
only  one  vacation  of  any  considerable  length,  containing  the  months 
of  August  and  September,  yet  Britton  is  express,  that  in  the 
reign  of  King  Edward  the  First  no  secular  plea  could  be  held,  nor 
any  man  sworn  on  the  Evangelists,  in  the  times  of  Advent,  Lent, 
Pentecost,  harvest,  and  vintage,  the  days  of  the  great  litanies, 
and  all  solemn  festivals.  But  he  adds,  that  the  bishops  did  never- 
theless grant  dispensations,  (of  which  many  are  preserved  in  Rymer's 
Foedera),  that  assizes  and  juries  might  be  taken  in  some  of  these 
holy  seasons.  And  soon  afterwards  a  general  dispensation  was 
established  by  statute  Westm.  1,  3  Edw.  I.  c.  51,  which  declares, 
that  "by  the  assent  of  all  the  prelates,  assizes  of  novel  disseisin, 
mort  d'ancestor  and  darrein  presentment  shall  be  taken  in  Advent, 
Septuagesima,  and  Lent ;  and  that  at  the  special  request  of  the  king 
to  the  bishops."  The  portions  of  time,  that  were  not  included 
within  these  prohibited  seasons,  fell  naturally  into  a  fourfold  divi- 
sion, and,  from  some  festival  day  that  immediately  preceded  their 
commencement,  were  denominated  the  terms  of  St.  Hilary,  of 
Easter,  of  the  Holy  Trinity,  and  of  St.  Michael:  which  terms 
have  been  since  regulated  and  aijbreviated  by  several  acts  of 
parliament. 

In  England,  Hilary  Term  began  January  3,  and  ended  February  12;  Easter 
Term  began  the  second  Wednesday  after  Easter  Sunday  and  ended  the  Mon- 
day after  Ascension  Day;   Trinity  Term  began  the  Friday  after  Trinity  Sunday, 


COURTS  IN  GENERAL  327 

and  ended  the  second  Wednesday  thereafter;  Michaelmas  Term  began  October  9, 
and  ended  November  28.     The  Judicature  Act  of  1873  aboUshed  these  terms. 

In  this  country,  in  most  jurisdictions,  the  terms  of  court  are  provided  for  by 
statute.     In  a  few  jurisdictions  terms  have  been  done  away  with. 

HOBART  V.  HOBART,  SUPREME  CoURT  OF  loWA,  1877  (45  la.  501). 

Beck,  J.:  ...  III.  Code,  sec.  2222,  authorizing  and  govern- 
ing proceedings  for  divorce,  contains  the  following  provision:  "No 
divorce  shall  be  granted  on  the  testimony  of  the  plaintiff;  and  all 
such  actions  shall  be  heard  in  open  court  on  the  testimony  of  wit- 
nesses, or  depositions  taken  as  in  other  equitable  actions  triable 
upon  oral  testimony,  or  by  a  commissioner  appointed  by  the  court." 
The  trial  required  in  this  section  is  to  be  had  in  open  court.  We 
are  first  charged  with  the  task  of  determining  the  purport  and  effect 
of  the  words  "open  court."  The  language  is  simple  and  its  mean- 
ing obvious.  The  trial  must  be  in  a  court.  Blackstone,  adopting 
Coke's  definition,  says,  "a  court  is  a  place  where  justice  is  judicially 
administered."  3  Bl.  Com.  24.  But  this  definition  obviously  wants 
fullness;  it  is  limited  to  the  place  of  a  court  in  its  expression.  In 
addition  to  the  place,  there  must  be  the  presence  of  the  officers 
constituting  the  court,  the  judge  or  judges  certainly,  and  probably 
the  clerk  authorized  to  record  the  action  of  the  court;  time  must 
be  regarded,  too,  for  the  officers  of  a  court  must  be  present  at  the 
place  and  at  the  time  appointed  by  law  in  order  to  constitute  a 
court.  To  give  existence  to  a  court,  then,  its  officers  and  the  time 
and  place  of  holding  it  must  be  such  as  are  prescribed  by  law.  The 
Circuit  Court  is  to  be  held  by  the  Circuit  Judge  (Code,  chap.  5, 
Title  III),  and  its  terms  are  prescribed  by  law  (§  163).  The  places 
of  holding  it  are  also  prescribed,  and  it  cannot  be  held  elsewhere 
(§  192).  To  constitute  the  Circuit  Court,  then,  the  Circuit  Judge 
must  be  in  the  discharge  of  judicial  duties  at  the  time  and  in  the 
place  prescribed  by  law  for  the  sitting  of  the  court. 

Flournoy  v.  City  of  Jeffersonville,  Supreme  Court  of 
Indiana,  1861  (17  Ind.  169). 

Perkins,  J.:  ...  The  provision  is  not  unconstitutional  because 
it  imposes  upon  a  ministerial  officer  the  performance  of  a  judicial 
act. 

The  issuing  of  the  writ,  as  we  have  said,  is  a  ministerial  act,  as 
much  as  the  issuing  of  an  attachment,  or  capias  for  the  arrest  of  the 
body,  upon  an  affidavit. 


328  ORGANIZATION  AND  JURISDICTION 

Judicial  acts,  within  the  meaning  of  the  Constitution  of  Indiana, 
are  such  as  are  performed  in  the  exercise  of  judicial  power.  But 
the  judicial  power  of  this  state  is  vested  in  courts.  A  judicial  act 
then,  must  be  an  act  performed  by  a  court,  touching  the  rights  of 
parties,  or  property,  brought  before  it  by  voluntary  appearance,  or 
by  the  prior  action  of  ministerial  officers,  in  short,  by  ministerial 
acts.  Sec  Waldo  v.  Wallace,  12  Ind.  569,  where  the  constitutional 
provisions  are  quoted.  The  acts  done  out  of  court,  in  bringing  par- 
ties into  court,  are,  as  a  general  proposition,  ministerial  acts;  those 
done  by  the  court  in  session,  in  adjudicating  between  parties,  or 
upon  the  rights  of  one  in  court,  ex  parte,  are  judicial  acts.  3  Blacks. 
Comm.,  p.  25. 

And  the  act  is  none  the  less  ministerial  because  the  person  per- 
forming it  may  have  to  satisfy  himself  that  the  state  of  facts  exists 
under  which  it  is  his  right  and  duty  to  perform  the  act.  In  Belts 
V.  Dimon,  3  Conn.  107,  where  it  was  held  that  the  administration  of 
the  poor  debtor's  oath  was  a  ministerial,  not  a  judicial  act,  Hosmer, 
C.  J.,  in  delivering  the  opinion  of  the  Court  said:  "Every  select- 
man, before  the  appointment  of  an  overseer,  and  every  sheriff", 
previous  to  taking  bail,  makes  inquiry  to  aid  him  in  the  legal  per- 
formance of  his  duty." 

So  in  Crane  v.  Camp,  12  Conn.  463,  it  was  held  that  a  justice  of 
the  peace  acted  ministerially  ih  appointing  freeholders  to  assess 
damages  sustained  by  taking  land  for  a  public  highway,  though  it 
was  necessary  for  him  to  make  inquiry  as  to  the  fitness  of  the  per- 
sons appointed. 

A  ministerial  act  may,  perhaps,  be  defined  to  be  one  which  a 
person  performs  in  a  given  state  of  facts,  in  a  prescribed  manner, 
in  obedience  to  the  mandate  of  legal  authority,  without  regard  to, 
or  the  exercise  of,  his  own  judgment  upon  the  propriety  of  the  act 
being  done. 

With  respect  to  the  scope  of  their  jurisdiction,  courts  are  (1)  of  general  juris- 
diction, or  (2)  of  sjiccial  or  limited  jurisdiction.  The  former  are  usually  called 
superior  courts,  the  name  borne  by  the  three  common-law  courts  to  which  they 
are  analogous. 

Courts  are  also  (1)  of  original  jurisdiction,  or  (2)  of  appellate  jurisdiction.  A 
court's  jurisdiction  is  original  when  causes,  or  a  certain  class  of  causes,  are  brought 
there  in  the  first  instance;  it  is  appellate  when,  having  originated  in  some  other 
court,  they  are  brought  to  the  court  in  question  to  obtain  review  of  the  order  or 
judgment  entered. 

Courts  are  often  given  both  kinds  of  jurisdiction.  Thus,  the  Supreme  Court 
of  the  United  States  has  original  jurisdiction  of  controversies  between  states  of 
the  Union,  tliougli  its  jurisdiction  is  chiefly  appellate. 


COURTS  IN  GENERAL  329 

Jurisdiction  may  be,  also,  (1)  exclusive  or  (2)  concurrent.  The  jurisdiction 
of  a  court  is  exclusive  when  controversies,  or  a  class  of  controversies,  must  be 
taken  before  the  court  in  question,  and  nowhere  else:  it  is  concurrent  when  they 
may  be  taken  before  the  court  in  question  or  some  other  tribunal  at  the  election 
of  the  parties  plaintiff.  Thus,  the  United  States  District  Courts  and  the  superior 
courts  of  general  jurisdiction  in  each  state  have  concurrent  jurisdiction  of  actions 
at  law  or  suits  in  equity  in  which  a  federal  question  is  involved  or  there  is  a 
diversity  of  citizenship,  the  parties  on  the  one  side  being  residents  of  the  state 
and  those  on  the  other  side  residents  of  some  other  state  or  states. 

Grignon  V.  AsTOR,  Supreme  Court  of  the  United  States, 
1844   (2  How.  319) 
Baldwin,  J.:      ...    The  granting  the  Hcense  to  sell  is  an  adju- 
dication upon   all   the   facts  necessary   to  give  jurisdiction,   and 
whether  they  existed  or  not  is  wholly  immaterial,  if  no  appeal  is 
taken;  the  rule  is  the  same  whether  the  law  gives  an  appeal  or  not; 
if  none  is  given  from  the  final  decree,  it  is  conclusive  on  all  whom 
it  concerns.    The  record  is  absolute  verity,  to  contradict  which  there 
can  be  no  averment  or  evidence;   the  court  having  power  to  make 
the  decree,  it  can  be  impeached  only  by  fraud  in  the  party  who 
obtains  it.     (6  Peters,  729).    A  purchaser  under  it  is  not  bound  to 
look  beyond  the  decree;  if  there  is  error  in  it,  of  the  most  palpable 
kind,  if  the  court  which  rendered  it  have,  in  the  exercise  of  juris- 
diction, disregarded,  misconstrued,  or  disobeyed  the  plain  provi- 
sions of  the  law  which  gave  them  the  power  to  hear  and  determine 
the  case  before  them,  the  title  of  a  purchaser  is  as  much  protected 
as  if  the  adjudication  would  stand  the  test  of  a  writ  of  error;    so 
where  an  appeal  is  given  but  not  taken  in  the  time  prescribed  by  law. 
These  principles  are  settled  as  to  all  courts  of  record  which  have  an 
original  general  jurisdiction,  over  any  particular  subjects;  they  are 
not  courts  of  special  or  limited  jurisdiction,  they  are  not  inferior 
courts,  in  the  technical  sense  of  the  term,  because  an  appeal  lies 
from  their  decisions.    That  applies  to  "courts  of  special  and  limited 
jurisdiction,  which  are  created  on  such  principles  that  their  judg- 
ments, taken  alone,  are  entirely  disregarded,  and  the  proceedings 
must  show  their  jurisdiction";    that  of  the  courts  of  the  United 
States  is  limited  and  special,  and  their  proceedings  are  reversible  on 
error,  but  are  not  nullities,  which  may  be  entirely  disregarded.     (3 
Peters,  205.)     They  have  power  to  render  final  judgments  and 
decrees  which  bind  the  persons  and  things  before  them  conclusively, 
in  criminal  as  well  as  civil  causes,  unless  revised  on  error  or  by 
appeal.    The  true  line  of  distinction  between  courts  whose  decisions 
are  conclusive  if  not  removed  to  an  appellate  court,  and  those  whose 


330  ORGANIZATION  AND  JURISDICTION 

proceedings  are  nullities  if  their  jurisdiction  does  not  appear  on 
their  face,  is  this :  a  court  which  is  competent  by  its  constitution  to 
decide  on  its  own  jurisdiction,  and  to  exercise  it  to  a  final  judgment, 
without  setting  forth  in  their  proceedings  the  facts  and  evidence  on 
which  it  is  rendered,  whose  record  is  absolute  verity,  not  to  be 
impugned  by  averment  or  proof  to  the  contrary,  is  of  the  first 
description;  there  can  be  no  judicial  inspection  behind  the  judg- 
ment save  by  appellate  power.  A  court  which  is  so  constituted 
that  its  judgment  can  be  looked  through  for  the  facts  and  evidence 
which  are  necessary  to  sustain  it,  whose  decision  is  not  evidence  of 
itself  to  show  jurisdiction  and  its  lawful  exercise,  is  of  the  latter 
description;  every  requisite  for  either  must  appear  on  the  face  of 
their  proceedings,  or  they  are  nullities.  The  Circuit  Court  of  this 
district  has  original,  exclusive,  and  final  jurisdiction  in  criminal 
cases;  its  judgment  is  a  sufficient  cause  on  a  return  to  a  writ  of 
habeas  corpus;  "on  this  writ  this  court  cannot  look  behind  the 
judgment  and  re-examine  the  charges  on  which  it  was  rendered.  A 
judgment  in  its  nature  concludes  the  subject  in  which  it  is  ren- 
dered, and  pronounces  the  law  of  the  case.  The  judgment  of  a 
court  of  record,  whose  jurisdiction  is  final,  is  as  conclusive  on  all 
the  world  as  the  judgment  of  this  court  would  be.  It  is  as  con- 
clusive in  this  court  as  it  is  in  other  courts.  It  puts  an  end  to  all 
inquiry  into  the  fact  by  deciding  it."     (3  Peters,  204,  205.) 

Osgood  v.  Blackmore,  Supreme  Court  of  Illinois,  1871 
(59  111.  261). 

Walker,  J.:  ...  Had  this  been  a  confession  before  the  clerk, 
and  not  in  open  court  then  there  would  have  been  great  force  in  the 
objection.  But  where  a  court  of  superior  general  jurisdiction  has 
proceeded  to  adjudicate  and  to  decree  in  a  matter  before  it,  ail 
reasonable  intendments  will  be  indulged  in  favor  of  its  jurisdiction. 
But  when  the  court  is  of  limited  or  inferior  jurisdiction,  such 
intendments  will  not  be  indulged,  but  the  facts  necessary  to  confer 
jurisdiction  must  appear  in  the  proceedings.  ' 

This  being  the  presumption,  then,  the  court  being  of  general  and 
superior  jurisdiction,  and  being  in  session  when  this  judgment  was 
rendered,  we  must  presume  that  the  court  first  heard  e\'idence  that 
the  requisite  notice  was  given  to  render  the  note  due  and  payable, 
before  the  judgment  was  rendered.  The  presumption  which  the 
law  indulges  in  favor  of  its  jurisdiction  can  only  be  overcome,  in  a 
collateral  proceeding,  when  the  record  itself  shows  there  was  no 


COURTS  IN  GENERAL  331 

jurisdiction,  and  there  is  nothing  in  the  record  of  the  confession  in 
this  case  which  tends  in  the  slightest  degree  to  contradict  the  pre- 
sumption. Had  the  record  stated  that  no  proof  was  heard  as  to 
any  notice  having  been  given,  then  the  presumption  would  have 
been  rebutted.  Or  had  it  appeared  from  the  record  that  the  note 
was  not,  and  could  not  have  been  due,  then  the  record  would  have 
shown  that  the  attorney  in  fact  had  no  power  to  enter  the  appear- 
ance of  the  defendants,  and  having  no  power,  the  court  would  have 
failed  to  acquire  jurisdiction  of  the  persons  of  the  defendants,  and 
the  case  would  have  been  like  Chase  v.  Dana,  supra.  But  to  render 
this  note  payable,  an  act  had  to  be  performed  that  must  be  proved 
before  a  recovery  could  be  had,  and  we  must  presume  in  favor  of 
the  judgment  of  the  superior  court,  that  evidence  was  heard  that 
the  notice  had  been  given  to  render  the  note  due,  and  which  con- 
ferred jurisdiction  over  the  defendants. 

Fox  v.  HoYT,  Supreme  Court  of  Errors  of  Connecticut, 
1838  (12  Conn.  491). 

Church,  J.:  ...  Two  causes  of  error  are  assigned  as  apparent 
upon  this  record :  First,  that  it  does  not  appear  that  Justice  Adams 
gave  notice  to  the  parties,  in  writing,  to  appear  before  him  for  the 
trial  of  said  action,  on  the  20th  day  of  January;  nor  that  the  notice 
was  served,  either  by  reading,  or  leaving  a  copy  with  the  parties, 
in  conformity  with  the  provisions  of  the  statute  of  1833.  And 
secondly,  that  it  does  not  appear  that  Justice  Adams  found  or 
adjudged  any  debt  to  be  due  to  the  plaintiff. 

1 .  The  statute  of  1833,  in  addition  to  the  act  for  regulating  courts, 
etc.,  enacts,  "that  whenever  any  writ,  suit,  or  civil  process  shall  be 
made  returnable  before  any  justice  of  the  peace,  and  at  the  time 
appointed  for  the  trial  of  the  same,  said  justice  shall  be  absent 
from  the  town  where  the  trial  is  to  be  had,  said  justice  may,  at  any 
time  within  twenty  days  after  the  said  time  for  trial,  proceed  to 
try  said  cause,  in  the  same  manner  as  he  might  have  done  at  said 
time  named  for  trial:  Provided,  that  he  shall  give  six  days  pre- 
vious notice  of  the  time  and  place  of  said  trial,  to  the  parties  in 
said  cause,  in  writing,  to  be  read  in  hearing  of  said  parties,  or  a  true 
and  attested  copy  thereof  to  be  left  at  their  usual  place  of  abode." 
Before  the  enactment  of  this  law,  if  a  justice  of  the  peace  was  absent 
at  the  time  of  trial,  no  legal  provision  existed  for  the  continuance 
of  his  powtr  and  jurisdiction  over  the  action;  and  no  further  pro- 
ceedings could  be  had  in  the  suit. 


332  ORGANIZATION  AND  JURISDICTION 

That  the  justice  in  this  case,  after  the  return  day  of  the  writ, 
the  13th  day  of  January,  could  proceed  no  further,  unless  he  caused 
the  parties  to  be  notified  in  writing,  in  the  manner  prescribed  by 
the  statute,  is  not  a  matter  for  dispute  and  cannot  be.  But  the 
question  is,  whether  the  facts  necessary  to  constitute  a  legal  notice, 
should  have  been  detailed  upon  the  record  of  the  justice,  and  for 
want  of  this,  the  judgment  be  erroneous?  Or  was  it  enough  that  it 
was  found  and  stated,  by  the  justice,  that  "the  parties  were  duly 
notified?" 

This  action,  at  its  commencement,  was  clearly  within  the  juris- 
diction of  the  justice.  The  sum  in  demand,  the  process  and  the 
parties,  were  such  as  gave  to  him  jurisdiction.  And  the  fact  that 
on  the  return  day,  the  justice  was  absent  from  the  town,  did  not 
take  away  his  jurisdiction  over  the  cause,  which  had  been  legally 
commenced.  The  statute  sustained  the  powers  of  the  court,  pre- 
served the  action  alive,  authorized  future  proceedings,  and  directed 
the  manner  of  them.  The  justice,  therefore,  having  before  him  a 
cause,  as  it  appeared  from  the  face  of  the  process  and  proceedings, 
of  which  he  had  jurisdiction,  had,  as  a  matter  of  course,  jurisdiction 
over  all  interlocutory  acts  legally  necessary  to  a  final  judgment. 
It  would  seem  to  follow  from  these  premises,  if  they  are  true,  that 
the  finding  of  the  justice,  that  the  parties  were  duly  notified,  is  con- 
clusive evidence  of  its  truth.  The  supreme  court  of  the  United 
States,  in  the  case  of  Vorhees  v.  The  United  Stales  Bank,  10  Peters 
472,  in  discussing  this  subject,  says:  "There  is  no  principle  better 
settled,  than  that  every  act  of  a  court  of  competent  jurisdiction 
shall  be  presumed  to  have  been  rightly  done,  till  the  contrary 
appears.  This  rule  applies  as  well  to  every  judgment  or  decree 
rendered  in  the  various  stages  of  their  proceedings,  from  their 
initiation  to  their  completion,  as  to  their  adjudication  that  the  plain- 
tiff has  a  right  of  action.  Every  matter  adjudicated  becomes  a 
part  of  their  record,  which  thenceforth  proves  itself,  without  refer- 
ring to  the  evidence  on  which  it  has  been  adjudged." 

If  this  doctrine  is  applicable  to  the  present  case,  of  which  there 
can  be  no  doubt,  the  consequence  is  irresistible,  that  the  fact  of 
notice  having  been  adjudicated,  must  be  taken  to  be  true,  with- 
out referring  to  the  evidence  upon  which  the  adjudication  was 
predicated.  The  justice,  by  his  record,  says,  the  parties  were 
duly  notified;  by  which  is  meant,  that  they  were  notified  in  the 
manner  prescribed  by  law.  This  is  the  obvious  meaning  of  the 
language  used.     This  the  justice  had  a  right  to  enquire  after,  and 


COURTS  IN  GENERAL  333 

to  find  as  an  essential  fact;  and  in  doing  so,  he  must  be  presumed  to 
have  acted  right.  This  principle  has  been  often  recognized,  even 
when  applicable  to  tribunals  of  special  and  limited  powers.  Ser- 
vice V.  Heermance,  1  Johns.  Rep.  91.  Frary  v.  Dakin,  7  Johns. 
Rep.  75. 

It  was  claimed  for  the  defendant,  in  the  argument,  that  a  jus- 
tice's court  in  this  state  is  one  of  special  and  limited  jurisdiction, 
and  could  not  justify  its  proceedings  at  all,  unless  upon  the 
face  of  them  every  fact  appeared,  which  was  necessary  to  confer 
jurisdiction. 

We  are  not  persuaded  that  it  is  necessary  for  the  determination 
of  this  case,  that  we  should  look  after  and  decide  the  precise  dis- 
tinction between  courts  of  general  and  courts  of  limited  jurisdiction, 
or  whether  a  justice's  court  be  the  one  or  the  other.  For  if  we  are 
correct  in  the  opinion  already  expressed,  that  Justice  Adams  in  this 
case  had  jurisdiction  from  the  commencement  of  this  suit,  which 
was  not  foregone,  by  his  absence  on  the  return  day  of  the  writ; 
then  the  principle  which  the  defendant  would  derive  from  this  claim 
has  no  application  here. 

If  by  a  court  of  general  jurisdiction  is  meant  one  of  unlimited 
powers,  then  we  have  none  such  in  this  state;  nor  do  we  know  of 
any  elsewhere.  And  if  by  a  court  of  limited  jurisdiction  is  meant 
one  whose  powers  are  subordinate  to  some  other  court ;  then  all 
but  courts  of  dernier  resort  are  of  this  character.  Such  is  not  the 
sense  in  which  this  subject  has  been  understood,  either  in  England 
or  in  this  country.  We  think  that  a  court  of  record,  proceeding 
according  to  the  common  law  of  the  land,  and  whose  judgments  may 
be  revised  by  writ  of  error,  is  a  court  whose  proceedings  and  judg- 
ments import  verity,  and,  until  reversed,  will  protect  all  who  obey 
them^  and  in  this  respect,  there  is,  in  this  state,  no  distinction 
between  courts  of  justices  of  the  peace,  and  the  county  and  superior 
courts.  In  this  sense,  the  courts  of  common  pleas  of  New  Jersey, 
Massachusetts,  Vermont  and  Ohio,  have  been  considered  as  courts 
of  general  jurisdiction. 

Between  all  these  courts  and  mere  special  tribunals,  such  as  com- 
missioners on  insolvent  estates,  committees,  military  tribunals,  and 
many  others,  which  are  not  courts  of  record,  and  are  established  for 
some  special,  and  perhaps  temporary,  purpose,  there  exists  a  very 
marked  distinction  in  regard  to  the  credit  and  sanction  to  which 
their  proceedings  are  entitled,  and  the  immunities,  which  may  be 
claimed  by  themselves,  and  such  as  act  under  them. 


334  ORGANIZATION  AND  JURISDICTION 

Trader  v.  McKee,  Supreme  Court  of  Illinois,  1839  (1  Scam. 
558). 
Lockwood,  Justice,  delivered  the  opinion  of  the  Court: 
This  was  originally  an  action  commenced  before  a  justice  of  the 
peace,  and  was  brought  by  appeal  into  the  Circuit  Court  of  Cook 
county.  It  appears  from  the  bill  of  exceptions  taken  in  the  cause, 
that  the  action  was  founded  on  several  judgments  obtained  before 
a  justice  of  the  peace  in  the  State  of  Indiana,  by  McKee,  against 
Moses  S.  and  Tegal  Trader.  The  defendants  below  objected  to 
the  transcripts  of  the  judgments  rendered  by  the  justice  of  the 
peace,  as  evidence  in  the  cause;  which  objection  the  Court  over- 
ruled, and  received  the  transcripts  in  evidence,  and  gave  judgment 
for  the  plaintiff  below.  Among  other  errors  relied  on  is  the  follow- 
ing, to  wit:  That  it  does  not  appear,  from  the  evidence  offered, 
that  the  justice  before  whom  the  judgments  purport  to  have  been 
rendered  had  any  jurisdiction  over  the  persons  of  the  defendants  or 
over  the  subject-matter  of  said  actions.  The  law  is  well  settled, 
that  in  courts  not  of  record,  in  order  to  justify  their  taking  cogni- 
zance of  a  cause,  their  jurisdiction  must  affirmatively  appear.  In 
order  to  have  received  these  transcripts  in  evidence,  it  was  incum- 
bent on  the  plaintiff  to  have  shown,  that  by  the  laws  of  Indiana 
the  justice  of  the  peace  had  jurisdiction  over  the  subject-matter  upon 
which  he  attempted  to  adjudicate. 

Denison  v.  Smith,  Supreme  Court  of  Michigan,  1876  (33 
Mich.  155). 

Campbell,  J.:  Smith  sued  Denison  jointly  with  one  Bush,  upon 
contract,  in  the  superior  court  of  Grand  Rapids.  Suit  was  com- 
menced by  declaration,  and  the  sheriff  made  return  of  service  on 
both  defendants  in  Kent  county,  and  did  not  certify  that  either  was 
served  in  Grand  Rapids.  Judgment  was  rendered  by  default,  on 
the  10th  of  July,  1875.  On  the  19th  of  July,  upon  an  ex  parte 
motion,  the  sheriff  was  allowed  to  amend  his  return  so  as  to  show 
service  on  Bush  in  Grand  Rapids  before  service  was  made  on  Deni- 
son. The  errors  assigned  in  this  court  are  based  upon  the  irreg- 
ularity of  the  default,  when  no  jurisdiction  appeared. 

The  jurisdiction  of  the  superior  court  is  declared  to  extend  to  civil 
cases  involving  more  than  one  hundred  dollars,  where  service  of 
declaration  or  process  is  made  on  one  or  all  of  the  defendants 
within  the  city  of  Grand  Rapids,  or  where  the  plaintiff  resides  in 
Grand  Rapids  and  service  is  made  on  a  defendant  in  Kent  county. 


JURISDICTION  335 

L.  1875,  p.  44,  13.  It  does  not  appear  from  the  declaration  that  the 
plaintiff  resides  in  Grand  Rapids,  and  therefore  the  jurisdiction 
depended  on  the  proper  service  of  process  on  Bush. 

The  court  in  question,  though  having  a  large  jurisdiction  over 
causes  of  action,  is  a  court  of  special  and  limited  jurisdiction  as  to 
persons,  and  in  all  such  cases  jurisdiction  must  be  shown,  and  cannot 
be  presumed.  In  Turrill  v.  Walker,  4  Mich.  R.,  177,  it  was  held 
a  circuit  court  process  could  not  be  served  without  the  county,  in 
the  absence  of  any  statute  authorizing  it,  and  that  court,  though 
having  general  powers,  could  have  no  jurisdiction  over  persons  not 
found  where  they  could  be  lawfully  served.  A  municipal  court 
created  for  a  city  would  be  an  anomaly,  if  it  could  send  its  proc- 
ess abroad  for  general  purposes.  The  powers  of  the  circuit  courts 
to  reach  defendants  beyond  the  county,  is  confined  to  cases  where 
one,  at  least,  is  served  within  it.  In  the  case  of  joint  debtors  the 
practice  is  governed  by  setion  5748  of  the  Compiled  Laws.  That 
section  expressly  contemplates  a  service  at  home  on  one  or  more 
defendants,  before  the  plaintiff  can  sue  out  further  process  or 
deliver  a  declaration  to  be  served  beyond  the  county  on  the  rest,  and 
in  the  case  of  process  it  evidently  requires  a  return  of  "not  found" 
as  a  preliminary.  The  language,  though  not  precise,  contemplates 
some  evidence  of  service  on  one  as  a  foundation  for  a  further  writ, 
and  the  same  provision  allows  the  plaintiff  to  have  his  declaration 
and  notice  of  rule  to  plead,  which  are  a  substitute  for  process, 
"served  on  the  defendants  not  elsewhere  served  in  any  other  county 
in  this  state."  It  was  never  intended  that  an  absent  defendant 
should  be  pursued  until  service  was  made  and  proved  on  the  other 
within  the  jurisdiction.  That  is  a  condition  precedent.  A  defend- 
ant has  a  right  to  know  from  the  record  whether  he  is  subject 
to  the  jurisdiction;  and  where  it  depends  on  a  previous  service  on 
some  one  else,  that  can  only  be  shown  by  the  return  of  service, 
or  by  appearance. 

Neither  can  a  court  render  judgment  against  a  party  who  has 
not  appeared,  without  some  evidence  of  jurisdiction. 


3.   JURISDICTION 

Sheldon  v.  Newton,  Supreme  Court  of  Ohio,  1854  (3  Ohio 
St.  494). 
Ranney,  J. :     .     .     .     I.    A  settled  axiom  of  the  law  furnishes  the 
governing  principles  by  which  these  proceedings  are  to  be  tested. 


336  ORGANIZATION  AND  JURISDICTION 

If  the  court  had  jurisdiction  of  the  subject-matter  and  the  parties, 
it  is  altogether  immaterial  how  grossly  irregular  or  manifestly 
erroneous  its  proceedings  may  have  been;  its  final  order  can  not 
be  regarded  as  a  nullity,  and  can  not,  therefore  be  collaterally  im- 
peached. On  the  other  hand,  if  it  proceeded  without  jurisdiction, 
it  is  equally  unimportant  how  technically  correct,  and  precisely 
certain,  in  point  of  form,  its  record  may  appear;  its  judgment  is 
void  to  every  intent,  and  for  every  purpose,  and  must  be  so  declared 
by  every  court  in  which  it  is  presented.  In  the  one  case,  the 
court  is  invested  with  the  power  to  determine  the  rights  of  the 
parties,  and  no  irregularity  or  error  in  the  execution  of  the  power 
can  prevent  its  judgment,  while  it  stands  unreversed,  from  dis- 
posing of  such  rights  as  fall  within  the  legitimate  scope  of  its 
adjudication;  while  in  the  other,  its  authority  is  wholly  usurped, 
and  its  judgments  and  orders  the  exercise  of  arbitrary  power  under 
the  forms,  but  without  the  sanction,  of  law.  The  power  to  hear 
and  determine  a  cause  is  jurisdiction;  and  it  is  coram  judice  when- 
ever a  case  is  presented  which  brings  this  power  into  action.  But 
before  this  power  can  be  affirmed  to  exist  it  must  be  made  to  appear 
that  the  law  has  given  the  tribunal  capacity  to  entertain  the  com- 
plaint against  the  person  or  thing  sought  to  be  charged  or  affected; 
that  such  complaint  has  actually  been  preferred ;  and  that  such  person 
or  thing  has  been  properly  brought  before  the  tribunal  to  answer 
the  charge  therein  contained.  When  these  appear,  the  jurisdiction 
has  attached;  the  right  to  hear  and  determine  is  perfect;  and  the 
decision  of  every  question  thereafter  arising  is  but  the  exercise 
of  the  jurisdiction  thus  conferred;  and  whether  determined  right- 
fully or  wrongfully,  correctly  or  erroneously,  is  alike  immaterial  to 
the  validity,  force,  and  effect  of  the  final  judgment,  when  brought 
collaterally  in.  question.  United  States  v.  Arredondo,  6  Pet.  709; 
Rhode  I  stand  X.  Massachusetts,  12  Pet.  718. 

We  wholly  dissent  from  the  position  taken  in  argument,  that  the 
jurisdiction  of  the  court,  or  the  effect  of  its  final  order,  can  be  made 
to  depend  upon  the  records  disclosing  such  a  state  of  facts  to  have 
been  shown  in  evidence,  as  to  warrant  the  exercise  of  its  authority. 
To  adopt  the  language  of  the  court,  in  answer  to  the  same  position, 
in  Voorhes  v.  The  United  States  Bank,  10  Pet.  473:  "We  can  not 
hesitate  in  giving  a  distinct  and  unqualified  negatixe  to  this  ])rop- 
osition,  l)oth  on  principle  and  authority  too  well  and  long  settled 
to  be  questioned."  It  was  distinctly  repudiated  in  the  early  case  of 
Ludlow's  Heirs  v.  Johnston,   3  Ohio,  560;    and  has  been  no  less 


JURISDICTION  337 

positively  denied  in  every  subsequent  case,  including  Adams  v. 
Jeffries,  12  Ohio,  253.  The  tribunal  in  which  these  proceedings 
were  had  was  a  court  of  record,  of  general  common-law  and  chan- 
cery jurisdiction;  and  while  it  is  true  that  in  the  exercise  of  this 
particular  authority,  it  may  be  regarded  as  a  tribunal  of  special  and 
limited  powers  prescribed  by  statute,  it  is  still  to  be  remembered, 
that  it  was  the  tribunal  created  by  the  constitution,  with  exclusive 
jurisdiction  over  probate  and  testamentary  matters,  and  had  no  one 
single  characteristic  of  those  inferior  courts  and  commissions,  to 
which  the  rule  insisted  upon  has  been  applied  by  the  English  and 
American  courts.  All  its  proceedings  are  recorded,  and  constitute 
records,  in  the  highest  sense  of  the  term,  importing  absolute  verity, 
not  to  be  impugned  by  averment  or  proof  to  the  contrary,  and 
conclusively  binding  the  parties,  and  all  who  stand  in  privity  with 
them.  The  distinction  is  not  between  courts  of  general  and  those 
of  limited  jurisdiction,  but  between  courts  of  record,  that  are  so 
constituted  as  to  be  competent  to  decide  on  their  own  jurisdiction, 
and  to  exercise  it  to  a  final  judgment  without  setting  forth  the  facts 
and  evidence  on  which  it  is  rendered,  and  whose  records,  when 
made,  import  absolute  verity;  and  those  of  an  inferior  grade,  whose 
decisions  are  not  of  themselves  evidence,  and  whose  "judgments 
can  be  looked  through  for  the  facts  and  evidence  which  are  neces- 
sary to  sustain  them.  McCormick  v.  Sullivant,  10  Wheat.  199; 
Griswold  v.  Sedwick,  1  Wend.  131;  Baldwin  v.  Hale,  17  Johns.  272; 
Grignon  s  Lessee  v.  Astor,  2  How.  341;  2  Binn.  255;  4  Ih.  187. 

Hunt  v.  Hunt,  Court  of  Appeals  of  New  York,  1878  (72 
N.Y.  217). 

Folger,  J.:  ...  We  come  now  to  consider  the  question  of 
the  jurisdiction  of  the  court. 

It  is  plain  that  every  state  has  the  right  to  determine  the  status, 
or  domestic  and  social  condition  of  persons  domiciled  within  its 
territory.  Strader v. Graham,  10  How.  (U.S.)  82;  Cheeverv.  Wilson, 
9  Wall.  108;  Barber  v.  Root,  10  Mass.  260;  Kinnier  v.  Kinnier, 
supra.  So  it  is  that  every  state  may  determine  for  itself  for  what 
causes  that  status  may  be  changed  or  affected,  and  hence  upon 
what  grounds,  based  upon  what  acts  or  omissions  of  persons  hold- 
ing the  relation  to  each  other  of  marriage,  they  may  be  separated 
and  that  relation  dissolved ;  and  it  may  prescribe  what  legal  pro- 
ceedings shall  be  had  to  that  end,  and  what  courts  of  its  sovereignty 
shall  have  jurisdiction  of  the  matrimonial  status  and  power  to 


338  ORGANIZATION  AND  JURISDICTION 

adjudge  a  dissolution  of  that  relation.     All  citizens  of  that  state, 
domiciled  within  it  and  owing  to  it  allegiance,  are  bound  by  the 
laws  and  regulations  which  it  prescribes  in  that  respect.     When, 
without  infringement  of  the  constitution  of  the  state,  its  statutes 
have  conferred  upon  any  of  its  courts  the  general  power  to  act 
judicially  upon  the  matrimonial  status  of  its  citizens,  or  of  persons 
within  its  territorial  limits,  and  to  adjudge  a  dissolution  of  the 
relation  of  husband  and  wife;    then,  we  take  it,  such  court  has 
jurisdiction  of  the  subject-matter   of    divorce.     A   text-writer    of 
repute  says,  that  "it  is  the  act  or  acts  which  constitute  the  cause 
of  action,"  which  "is  the  subject-matter  in  a  suit  for  divorce." 
See  3  Am.  Law.  Reg.  (N.  S.)  206.    And  in  Holmes  v.  Holmes,  4 
Lans.  388,  the  learned  and  able  judge  who  delivered  the  opinion 
of  the  court  speaks  of  the  acts  relied  upon  to  obtain  a  divorce  as 
being  the  subject-matter.    The  definitions  of  lexicographers  imply 
a  broader  scope  to  the  phrase,  a  more  general  meaning.      It  is: 
"The  cause;    the  object;    the  thing  in  dispute."     Bouvier's  Law 
Diet.     "The  matter  or  thought  presented  for  consideration  in  some 
statement  or  discussion."    Webster's  Diet.    Power  given  by  law  to 
a  court,  to  adjudge  divorces  from  the  ties  of  matrimony,  does  give 
jurisdiction  of  the  subject-matter  of  divorce.     Though   the  pro- 
ceedings before  that  court,  from  first  to  last  of  the  testimony,  in 
an  application  for  divorce,  should  show  that  a  state  of  facts  does 
not  exist  which  makes  a  legal  cause  for  divorce,  yet  it  cannot  be 
said  that   the  court  has  not  jurisdiction  of  the  subject-matter; 
that  it  has  not  power  to  entertain  the  proceeding,  to  hear  the  proofs 
and  allegations,  and  to  determine  upon  their  sufficiency  and  legal 
effect.     Then  jurisdiction  of  the  subject-matter  does  not  depend 
upon  the  ultimate  existence  of  a  good  cause  of  action  in  the  plain- 
tiff in  the  particular  case.    See  Groenvelt  v.  Burwell,  1  Ld.  Raym. 
465,  467.    A  court  may  have  jurisdiction  of  all  actions  in  assumpsit, 
of  that  subject-matter.     An  action  by  A.,  in  which  judgment  is 
demanded  against   B.  as  the  indorser  of  a  promissory  note,   falls 
within  that  jurisdiction.     Such  court  may  entertain  and  try  the 
action,  and  give  a  valid  and  effectual  judgment  in  it.    Though  it 
should   appear  in  proof  that  there  had  never  been  presentment 
and  demand,  nor  notice  of  non-payment,  yet  a  judgment  for  A. 
against  B.,  though  against  the  facts,  without  the  facts  to  sustain 
it,  would  not  be  void  as  rendered  without  jurisdiction.     It  would 
be  erroneous  and  liable  to  reversal  on  review.    Until  reviewed  and 
reversed,  it  would  be  valid  and  enforceable  against  B.,  and  entitled 


JURISDICTION  339 

to  credit  when  brought  in  play  collaterally.  If  given  by  such  a 
court  in  a  sister  state  against  one  of  whose  person  that  court  had 
jurisdiction,  it  would  be  a  judgment  which  the  courts  of  this  state 
would  be  bound  to  credit  and  enforce.  Jurisdiction  of  the  subject- 
matter  is  power  to  adjudge  concerning  the  general  question  in- 
volved, and  is  not  dependent  upon  the  state  of  facts  which  may 
appear  in  a  particular  case,  arising,  or  which  is  claimed  to  have  arisen, 
under  that  general  question.  One  court  has  jurisdiction  in  criminal 
cases;  another  in  civil  cases;  each  in  its  sphere  has  jurisdiction  of 
the  subject-matter.  Yet  the  facts,  the  acts  of  the  party  proceeded 
against,  may  be  the  same  in  a  civil  case,  as  in  a  criminal  case  — 
as,  for  instance,  in  a  civil  action  for  false  and  fraudulent  represen- 
tations and  deceit,  and  in  a  criminal  action  for  obtaining  property 
by  false  pretenses.  We  should  not  say  that  the  court  of  civil  powers 
had  jurisdiction  of  the  criminal  action,  nor  vice  versa,  though  each 
had  power  to  pass  upon  allegations  of  the  same  facts.  So  that 
there  is  a  more  general  meaning  to  the  phrase,  "subject-matter," 
in  this  connection,  than  power  to  act  upon  a  particular  state  of  facts. 
It  is  the  power  to  act  upon  the  general,  and  so  to  speak,  the  abstract 
question,  and  to  determine  and  adjudge  whether  the  particular 
facts  presented  call  for  the  exercise  of  the  abstract  power.  A  suitor 
for  a  judgment  of  divorce  may  come  into  any  court  of  the  state  in 
which  he  is  domiciled,  which  is  empowered  to  entertain  a  suit 
therefor,  and  to  give  judgment  between  husband  and  wife  of  a 
dissolution  of  their  married  state.  If  he  does  not  establish  a  cause 
for  divorce,  jurisdiction  to  pronounce  judgment  does  not  leave 
the  court.  It  has  power  to  give  judgment  that  he  has  not  made 
out  a  case.  That  judgment  would  be  valid  and  effectual  as  to 
bind  him  thereafter,  and  to  be  res  adjudicata  as  to  him  in  another 
like  attempt  by  him.  If  that  court,  however,  should  err,  and  give 
judgment  that  he  had  made  out  his  case,  jurisdiction  remains  in 
it  so  to  do.  The  error  is  to  be  corrected  in  that  very  action.  It 
may  not  be  shown  collaterally  to  avoid  the  judgment,  while  it  stands 
unreversed,  whether  the  judgment  be  availed  of  in  the  state  of  its 
rendition,  or  a  sister  state;  granted  always  that  there  had  been 
jurisdiction  of  the  parties  to  it.  The  judgment  is  in  such  case,  also, 
res  adjudicata  against  the  party  cast  in  judgment.  The  relevancy 
of  this  discussion  will  appear  when  we  come  to  consider  more 
particularly  some  of  the  points  made  by  the  plaintiff.  We  con- 
clude that  jurisdiction  of  the  subject-matter  is  the  power  lawfully 
conferred  to  deal  with  the  general  subject  involved  in  the  action. 


340  ORGANIZATION  AND  JURISDICTION 

Raxey  v.  McRae,  Supreme  Court  of  Georgia,  1854  (14  Ga. 
589). 

Lumpkin,  J.:  ...  But  it  is  further  insisted  that  this  judg- 
ment is  a  nullity  for  want  of  jurisdiction  in  the  court  to  give  it. 
And  this  exception  is  founded  on  the  fact  that  the  declaration  does 
not  aver  that  the  defendants  resided  in  Stewart  county. 

Parties  cannot  by  consent,  whether  express  or  implied,  confer 
jurisdiction  over  the  subject-matter.  Titles  to  land  must  be  tried 
in  the  superior  court,  and  in  the  county  where  they  lie.  But  it  is 
otherwise  as  to  the  person. .  The  provision  in  the  constitution  fixing 
the  residence  of  the  defendant  as  the  place  of  trial  guarantees  a 
personal  privilege,  which  may  be  waived. 

Marsden  v.  Soper,  Supreme  Court  of  Ohio,  1860  (11  Ohio  St. 
503). 

Brinkerhoff,  J.:  ...  The  only  question  arising  on  the  record, 
which  we  deem  it  worth  while  to  notice,  is  the  question  whether  the 
court  of  common  pleas  had  jurisdiction  of  the  persons  of  the  defend- 
ants below,  so  as  to  authorize  that  court  to  take  cognizance  of, 
and  to  render  a  judgment  in  the  case  affecting  their  rights. 

It  will  be  noticed  that  the  plaintiff  in  this  judgment  is  not  the 
payee  of  the  note  on  which  judgment  is  taken,  but  an  indorsee; 
and  that  the  warrant  of  attorney,  under  which  judgment  was  con- 
fessed, purports  to  authorize  such  confession,  "in  favor  of  any 
holder  of  this  obligation,"  after  the  same  becomes  due.  But  it 
was  held,  in  broad  and  general  terms,  in  the  case  of  Oshorn  v. 
Hawley,  19  Ohio  Rep.,  130,  that  a  warrant  of  attorney  to  confess 
judgment,  attached  to  a  note,  and  forming  a  part  of  the  same  instru- 
ment, is  not  negotiable,  and  when  the  note  is  transferred,  becomes 
invalid  and  inoperative.  It  is  true  the  report  of  that  case  does  not 
inform  us  whether  the  warrant  of  attorney  in  that  case  purported 
to  authorize  the  confession  of  a  judgment  in  favor  of  the  payee  of 
the  note  alone,  or  whether  its  terms  extended,  as  in  this  case,  to  any 
holder  of  the  note  after  due.  But,  however  this  may  have  been 
in  that  case,  we  suppose  that,  if  this  judgment  rested  upon  the 
confession  under  the  warrant  of  attorney  alone,  it  would  be  very 
questionable  whether  the  court  of  common  pleas  had  any  rightful 
jurisdiction  of  the  defendants  in  the  judgment. 

But,  did  they  not,  after  the  entry  of  judgment  against  them, 
confer  jurisdiction,  by  such  an  appearance  and  proceeding  in  the 
case,  as  constituted  a  waiver  of  exception  to  the  jurisdiction?     It 


JURISDICTION  341 

seems  to  us  that  they  did.  They  were  not  obliged  to  proceed  by 
motion,  but  might  ha\e  resorted  to  proceedings  in  error,  in  the 
first  instance.  But  they  chose  to  appear  and  move  to  vacate  the 
judgment.  This  they  might  properly  do,  cither  on  the  alleged 
ground  of  a  want  of  jurisdiction,  or  alleged  irregularity  or  error, 
outside  of  the  question  of  jurisdiction.  What  was,  in  fact,  the 
ground  of  the  motion,  we  are  not  informed;  for,  by  agreement  of 
parties,  no  record  of  the  motion  was  made.  In  this  matter  we  are 
left  to  conjecture.  If  the  motion  was  grounded  upon  irregularity, 
or  error  in  the  judgment  alone,  aside  from  the  question  of  jurisdic- 
tion, the  motion  itself  would  constitute  such  an  appearance  as  would 
have  the  effect  to  waive  the  question  of  jurisdiction.  If  the  motion 
was  based  on  an  alleged  want  of  jurisdiction,  it  would  be  no  such 
appearance  or  waiver;  and  if  the  motion  had  been  erroneously 
determined  against  the  defendants  in  the  judgment,  they  might 
have  taken  their  exceptions,  and  reversed  the  ruling  of  the  court. 
But,  instead  of  doing  this,  while  they  were  in  the  proper  court, 
at  a  proper  time,  and  while  the  whole  matter  was  under  the  control 
of  that  court,  they  voluntarily  consented  to  the  dismissal  of  the 
motion,  and,  by  so  doing,  it  seems  to  us,  they  voluntarily  consented 
to  let  the  judgment  stand  agamst  them,  and  ought  not  now  to  be 
allowed  to  allege  a  want  of  jurisdiction  in  the  court  which  rendered 
it.     Judgment  affirmed. 

The  Lucy,  Supreme  Court  of  the  United  States,  1869  (8 
Wall.  307). 

Mr.  Chief  Justice  Chase  delivered  the  opinion  of  the  court: 

W'e  think  that  the  motion  to  dismiss,  made  in  this  case,  must  be 
allowed. 

The  decree  of  condemnation  passed  in  the  District  Court  on  the 
4th  of  August,  1862,  and  on  the  loth  an  appeal  was  allowed  to  this 
court. 

By  the  act  of  Feb.  23,  1847,  9  Stat,  at  L.,  131,  the  District  Court 
for  the  Northern  District  of  Florida  was  established,  with  the  juris- 
diction and  powers  of  a  District  and  Circuit  Court  of  the  United 
States;  and  appeals  were  allowed  from  its  decrees  in  the  same 
manner  and  under  the  same  regulations,  as  appeals  from  the  circuit 
court. 

At  this  time  the  act  of  1803,  2  Stat,  at  L.,  244,  governed  appeals 
from  the  District  to  the  Circuit  Courts,  and  from  the  Circuit  Court 
to  this  court.     No  appeal  in  admiralty  could  be  taken  directly  from 


342  ORGANIZATION  AND  JURISDICTION 

the  District  Court  to  this  court,  except  when,  as  in  the  case  of  the 
Southern  District  Court  of  Florida,  the  District  Court  exercised  the 
jurisdiction  of  the  Circuit  Court  as  well  as  that  of  the  District 
Court. 

If  this  state  of  the  law  had  undergone  no  change  at  the  date  of 
the  decree  of  condemnation  in  this  case,  the  allowance  of  an  appeal 
to  this  court  would  have  been  quite  regular. 

But  on  the  15th  day  of  July,  1862,  Congress  passed  an  act 
establishing  a  Circuit  Court  for  a  circuit  which  included  the  South- 
ern District  of  Florida,  and  repealing  the  former  act,  which  con- 
ferred upon  the  District  Court,  Circuit  Court  jurisdiction.  The 
effect  of  this  act  was  to  vest  in  the  Circuit  Court  for  that  circuit 
the  whole  appellate  jurisdiction  exercised  by  other  Circuit  Courts 
in  respect  to  decrees  in  admiralty.  It  left  the  original  jurisdiction 
in  admiralty  of  the  District  Court  untouched. 

It  was  in  virtue  of  this  original  jurisdiction  that  the  District  Court 
had  cognizance  of  the  case  of  The  Lucy.  The  appellate  jurisdiction 
of  the  case  was  vested  by  the  act  in  the  Circuit  Court. 

It  follows  that,  when  the  decree  was  pronounced  in  August,  no 
appeal  could  be  taken  to  this  court,  but  only  to  the  Circuit  Court, 
and  that  the  allowance  of  an  appeal  to  this  court  was  a  nullity. 

This  objection  to  the  jurisdiction  is  decisive;  but,  if  it  were 
otherwise,  the  fact  that  no  transcript  of  the  record  was  filed  at  the 
next  term,  would  be  fatal  to  the  appeal.  Castro  v.  U.  S.,  3  Wall., 
47;  Ins.  Co.  v.  Mordecai,  21  How.,  195. 

No  consent  of  counsel  can  give  jurisdiction.  Appellate  jurisdic- 
tion depends  on  the  Constitution  and  the  Acts  of  Congress.  When 
these  do  not  confer  it,  courts  of  the  United  States  cannot  exercise  it. 

We  cannot  take  cognizance  of  a  case  not  brought  before  us  in 
conformity  witii  tiie  law. 
.  The  case  at  bar,  therefore,  must  be  dismissed. 

DeWHURST    v.    COULTHARD,    SUPREME    CoURT    OF    THE    UNITED 

States,  1799  (3  Dal.  409). 

The  following  statement  of  a  case  was  presented  by  E.  Tilgh- 
man  to  the  court,  at  the  instance  of  the  attorneys  for  both  the 
parties  in  the  suit,  in  the  circuit  court  of  the  New  York  district, 
with  a  request,  that  it  might  be  considered  and  decided. 

"This  was  an  action  commenced  by  Isaac  Coulthard,  against 
John  Dewhurst  in  the  Supreme  Court  of  the  state  of  New  York, 
and  was  removed  by  petition  to  the  circuit  court  of  the  United 


JURISDICTION  343 

States  for  the  New  York  district,  agreeably  to  the  act  of  Congress 
in  such  case  made  and  provided,  by  the  defendant,  he  being  a 
citizen  of  the  state  of  Pennsylvania. 

"The  plaintiff's  action  is  prosecution  against  the  above  defendant, 
as  the  indorser  of  a  foreign  bill  of  exchange  drawn  by  G.  B.  Ewart 
of  the  city  and  state  of  New  York,  on  Thomas  Barnes  of  Baldork 
near  London,  dated  the  tenth  day  of  January  one  thousand  seven 
hundred  and  ninety-two. 

"On  the  part  of  the  defendant,  it  is  admitted  that  at  the  time  of 
the  making  and  indorsing  said  bill,  the  said  John  Dewhurst  was  a 
citizen  of,  and  resident  in,  the  city  and  state  of  New  York  and 
that  he  duly  received  notice  of  the  protest  of  the  said  bill,  for  non- 
acceptance  and  non-payment. 

"That  on  or  about  the  twenty-fifth  day  of  May,  one  thousand 
seven  hundred  and  ninety-two,  the  defendant  removed  to  the  city 
of  Philadelphia,  in  the  state  of  Pennyslvania,  where  he  has  resided 
since  that  period.  That  shortly  after  his  removal  to  Philadelphia, 
viz.,  on  or  about  the  seventh  day  of  June,  one  thousand  seven 
hundred  and  ninety-two,  a  commission  of  bankruptcy  was  awarded 
and  issued  forth  against  him,  in  pursuance  of  two  certain  acts  or 
statutes  of  the  said  state  of  Pennsylvania,  the  one  entitled,  'An  act 
for  the  regulation  of  bankruptcy';  the  other  entitled,  'An  Act  to 
amend  an  act  entitled,  an  act  for  the  regulation  of  bankruptcy.' 
And  in  pursuance  of  which  said  statutes  the  defendant  did  actually 
deliver,  assign  and  transfer,  to  the  commissioners  appointed  under 
the  said  commission,  the  whole  of  his  effects,  as  well  in  the  state  of 
Pennsylvania  as  elsewhere,  which  consisted  principally  of  credits 
due  to  the  said  defendant,  in  the  state  of  New  York.  It  is  further 
admitted,  that  the  said  John  Dewhurst  in  all  things  complied  with 
the  said  statutes  of  bankruptcy  before  referred  to,  and  that  on  the 
eleventh  of  August,  one  thousand  seven  hundred  and  ninety-two,  he 
obtained  a  certificate  of  bankruptcy  duly  executed. 

"Upon  the  above  state  of  the  case,  it  is  submitted  to  the  Supreme 
Court  of  the  United  States,  to  determine,  whether  the  certificate, 
issued  under  the  laws  of  Pennsylvania,  operates  as  a  discharge  of 
the  said  debt,  notwithstanding  its  being  contracted  in  another 
state,  where  there  was  no  bankrupt  law,  and  while  the  defendant 
was  resident  in  the  said  state  of  New  York.  If  the  court  should 
be  of  opinion  that  it  does,  it  is  agreed  that  judgment  be  entered  for 
the  defendant;  otherwise  for  the  plaintiff,  for  eleven  hundred  and 
twenty  dollars  damages,  and  six  cents  costs." 


344  ORGANIZATION  AND  JURISDICTION 

The  court,  on  the  ensuing  morning,  returned  the  statement  of  the 
case,  declaring,  that  they  could  not  take  cognizance  of  any  suit  or 
contro\-ersy  which  was  not  brought  before  them  by  the  regular 
process  of  the  law.     Motion  refused. 

Blair  v.  State  Bank  of  Illinois,  Supreme  Court  of  Mis- 
souri, 1843  (8  Mo.  313). 

Scott,  J.:  H.  Raisin  &  Co.  made  an  assignment  of  their  efifects, 
for  the  benefit  of  their  creditors,  to  the  appellant,  Blair.  The 
efifects  assigned  were  insufficient  to  pay  all  his  debts.  The  appellee, 
the  State  Bank  of  Illinois,  was  the  holder  of  two  bills  of  exchange 
on  Raisin  &  Co.,  the  indorsers  of  which  were  preferred  creditors 
under  the  assignment.  Blair,  the  assignee,  declared  a  dividend  of 
the  assets  amongst  the  preferred  creditors  of  twenty-fi\'e  per  cent 
upon  their  respective  claims.  The  State  Bank  of  Illinois  having 
failed,  its  notes  in  circulation  were  forty-four  per  cent  below  par 
An  action  of  assumpsit  was  instituted  by  the  Bank  against  Blair. 
The  declaration  contained  the  common  counts,  and  the  parties 
having  agreed  upon  the  foregoing  statement  of  facts,  they  made  the 
right  of  the  plaintiff  to  recover  dependent  on  the  solution  of  the 
question,  whether  Blair,  the  assignee,  could  buy  the  notes  of  the 
State  Bank  of  Illinois,  and  with  them  pay  the  dividend  due  the 
bank,  carrying  the  profits  arising  from  the  transaction  into  the 
general  fund,  for  distribution  among  the  creditors  at  large.  The 
court  below  rendered  judgment  for  the  bank,  from  which  Blair 
has  appealed  to  this  Court. 

If  Blair  wished  to  know  whether  the  notes  of  the  bank  could 
have  been  used  as  a  set-ofT  to  the  action  against  him,  we  know  of 
no  other  mode  by  which  it  could  be  ascertained,  than  by  pleading 
them  by  way  of  set-ofT.  But  we  cannot  see  the  object  in  raising  this 
question.  Raisin  &  Co.'s  elTects  were  insufficient  to  pay  all  their 
debts.  The  agreed  case  admits  that  the  indorsers  of  the  bills  of 
exchange  were  preferred  creditors  under  the  assignment;  that  is, 
we  suppose,  were  to  have  the  debts  for  which  they  were  liable,  paid 
before  the  other  creditors.  Now,  if  Blair  should  have  purchased  the 
paper  of  the  bank,  and  with  it  ha\'e  paid  her  dividend  under  the 
assignment,  and  carried  the  profits  into  the  trust  fund,  would  not 
these  profits  have  rightly  belonged  to  the  bank,  standing  in  the 
place  of  the  preferred  creditors?  Twenty-five  per  cent  of  the 
amount  of  the  bills  of  exchange,  converted  into  bank-])aper  at  forty- 
four  per  cent  discount,  would  not  ha\e  paid  the  bills,  and  until 


JURISDICTION  345 

the  bank  had  been  paid,  at  least  in  her  own  paper,  she  being  a 
preferred  creditor,  a  question  as  to  the  legality  of  the  conversion 
of  the  funds  into  bank-paper  could  not  well  arise  between  her  and 
the  other  creditors  —  that"  is,  should  not  all  the  money  accruing 
under  the  assignment  be  first  applied  to  the  satisfaction  of  the 
preferred  creditors? 

But  be  these  matters  as  they  may,  we  do  not  feel  ourselves  at 
liberty  to  entertain  questions  presented  in  the  manner  in  which  this 
is  done.  The  parties  to  a  suit  at  law  or  equity  may  agree  on  the 
facts  of  a  case,  and  suffer  the  court  to  declare  the  law  arising  on 
those  facts,  but  to  agree  on  facts  not  in  the  cause,  and  under  the 
pretense  of  a  suit  at  law,  to  obtain  the  opinion  of  this  court  on 
matters  wholly  disconnected  with  the  suit,  cannot  be  tolerated. 
Here  we  are  called  upon  in  an  action  of  assumpsit,  to  declare  the 
law  governing  the  conduct  of  a  trustee  in  the  management  of  the 
trust  fund,  a  duty  peculiarly  the  province  of  a  court  of  equity, 
which,  with  unrestrained  freedom,  takes  a  whole  transaction  into 
consideration,  from  the  beginning  to  the  end,  giving  attention  to 
every  circumstance  which  can  in  any  w'ise  affect  its  opinion.  The 
straight-laced  proceedings  of  a  court  of  law  wholly  disqualify  it  for 
such  a  task,  and  neither  the  consent  nor  the  release  of  errors,  nor 
any  other  act  of  the  parties,  can  induce  this  court  to  permit  itself 
to  be  converted  into  one  in  which  questions  of  law  may  be  mooted, 
at  the  will  of  suitors.     Appeal  dismissed. 

Brewington  v.  Lowe,  Supreme  Court  of  Indiana,  1848  (1 
Ind.  21). 

Smith,  J.:  The  record  in  this  case  purports  to  contain  the  pro- 
ceedings in  an  action  of  trespass  quare  clausum  fregit,  instituted 
in  the  Dearborn  circuit  court,  by  Joshua  Brewington  against  George 
P.  Lowe.  The  declaration  contains  five  counts,  the  locus  in  quo 
specified  in  each  count  being  different.  The  defendant  pleads  in 
abatement  to  the  jurisdiction  of  the  court,  that  the  said  several 
closes,  in  the  first,  second,  and  third  counts  mentioned  are  situate 
within  the  county  of  Ohio,  and  that  the  closes  in  the  fourth  and  fifth 
counts  mentioned  are  within  the  county  of  Ripley.  The  replications 
allege  that  all  of  said  closes  are  in  the  county  of  Dearborn  tender- 
ing issues  to  the  country.  The  cause  w^as  then  submitted  to  the  court 
for  trial,  and  there  was  a  finding  and  judgment  for  the  defendant. 

By  a  bill  of  exceptions  it  appears  that  upon  the  trial  the  following 
facts  were  admitted:    1.  That  the  closes  described  in  the  second 


346  ORGANIZATION  AND  JURISDICTION 

and  third  counts  of  the  declaration  are  situate  in  that  territory 
stricken  or  attempted  to  be  stricken  from  Dearborn  county  to  form 
and  organize  Ohio  county  by  the  act  of  the  legislature  of  the  fourth 
of  January,  1844.  2.  That  the  close  described  in  the  first  count  is 
situate  in  the  territory  stricken  or  attempted  to  be  stricken  from 
Dearborn  county,  and  added  or  attempted  to  be  added  to  Ohio 
county  by  the  act  of  the  seventh  of  January,  1845.  3.  That  the 
closes  in  the  fourth  and  fifth  counts  mentioned  are  situate  in  that 
part  of  Dearborn  county  taken  or  attempted  to  be  taken  to  form 
part  of  Ripley  county  by  the  act  of  December  27,  1816.  It  also 
appears  that  upon  the  trial  the  plaintiff  offered  certain  testimony 
with  a  view  of  establishing  the  fact  that,  by  the  act  of  December  27, 
1816,  detaching  a  portion  of  the  county  of  Dearborn  for  the  forma- 
tion of  the  county  of  Ripley,  the  former  county  was  reduced  so  as 
to  contain  less  than  four  hundred  square  miles  of  territory,  and  that 
consequently  that  act,  as  well  as  the  subsequent  acts  forming  the 
county  of  Ohio  out  of  the  territory  then  remaining  to  Dearborn 
county,  were,  so  far  as  regarded  the  rights  of  the  latter  county,  un- 
constitutional and  void,  and  could  not  divest  the  courts  of  chat 
county  of  the  jurisdiction  they  had  previously  been  authorized  to 
exercise  within  the  limits  of  the  territory  thus  attempted  to  be 
detached.  This  testimony  was  excluded  by  the  circuit  court  on 
the  ground  that  it  was  not  competent  for  the  court  to  hear  testi- 
mony, the  object  of  which  was  to  show  that  the  several  acts  of  the 
legislature,  above  referred  to,  were  void  by  reason  of  their  uncon- 
stitutionality. 

In  the  history  given  of  this  case  by  the  counsel  for  the  plaintiff 
in  error,  and  his  statement  is  confirmed  by  the  counsel  for  the 
defendant,  we  are  informed  that  this  suit  was  not  instituted  to  settle 
any  matter  really  in  controversy  between  the  nominal  parties, 
but  as  a  device  by  certain  persons  who  believed  "that  the  legisla- 
ture had  been  imposed  upon  as  to  the  quantity  of  land  in  Dear- 
born county,"  when  the  acts  above  referred  to  were  passed,  and 
were  desirous  to  test  the  constitutionality  of  those  acts  by  bringing 
them  in  question  in  some  way  before  a  judicial  tribunal.  These 
persons  accordingly  procured  surveys  to  be  made  of  the  territory 
embraced  within  the  counties  of  Dearborn  and  Ohio,  and  then 
instituted  this  action  avowedly  for  the  purpose  of  testing  the  con- 
stitutionality of  the  acts  of  the  legislature  forming  the  counties 
of  Ripley  and  Ohio,  by  describing  closes  in  the  different  counts  of 
the  declaration  situate  in  each  of  the  several  pieces  of  territory 


JURISDICTION  347 

which  had  been  taken  by  those  acts  from  the  county  of  Dearborn, 
and  thus  raising  an  issue  as  to  the  jurisdiction  of  the  Dearborn  cir- 
cuit court  within  the  territory  thus  detached.  We  think  these 
proceedings  were  instituted  under  a  mistaken  apprehension  of  the 
proper  functions  of  the  jucHciary.  Courts  of  justice  are  estabhshcd 
to  try  questions  pertaining  to  the  rights  of  individuals.  An  action 
is  the  form  of  a  suit  given  by  kiw  for  the  recovery  of  that  which  is 
one's  due,  or  a  legal  demand  of  one's  right.  In  such  actions,  if 
there  is  found  to  be  a  conflict  of  laws  as  they  relate  to  the  particular 
case  under  consideration,  whether  such  conflict  arises  from  con- 
stitutional reasons  or  otherwise,  there  can  be  no  doubt  that,  from 
the  very  nature  of  the  case,  a  decision  must  be  rendered  according 
to  the  laws  which  are  paramount.  But  courts  will  not  go  out  of 
their  proper  sphere  to  determine  the  constitutionality  or  uncon- 
stitutionality of  a  law.  They  will  not  declare  a  law  unconstitutional 
or  void  in  the  abstract,  for  that  would  be  interfering  with  the  legis- 
lative power,  which  is  separate  and  distinct.  It  is  only  from  the 
necessity  of  the  case,  when  they  are  compelled  to  notice  such  law 
as  bearing  upon  the  rights  of  the  parties  to  a  question  legally  pre- 
sented for  adjudication  that  they  will  go  into  an  examination  of 
its  validity,  and  then  the  decision  has  reference  only  to  that  par- 
ticular question,  except  so  far  as  it  may  operate  as  a  precedent, 
when  it  may  afterwards  become  necessary  to  decide  similar  cases. 

But  unless  some  individual  right  directly  affecting  the  parties 
litigant  is  thus  brought  in  question  so  that  a  judicial  decision  becomes 
necessary  to  settle  the  matters  in  controversy  between  them  rela- 
tive thereto,  the  courts  have  no  jurisdiction;  and  it  would  be  a 
perversion  of  the  purposes  for  which  they  were  instituted  and  an 
assumption  of  functions  that  do  not  belong  to  them,  to  undertake 
to  settle  abstract  questions  of  law  in  whatever  shape  such  ques- 
tions may  be  presented.  The  impropriety  of  doing  so  in  the  present 
case  is  manifest  from  the  facts,  that  the  question  professed  to  be 
litigated  considered  with  reference  either  to  the  point  of  law  at- 
tempted to  be  raised,  or  the  importance  of  the  interests  involved  is 
one  of  very  grave  character,  and  the  parties  who  would  be  chiefly 
affected  by  its  decision  are  not  before  the  court,  and  have  no  oppor- 
tunity of  being  heard.  Indeed,  it  is  well  settled  that  courts  will 
not  take  cognizance  of  fictitious  suits  instituted  merely  to  obtain 
judicial  opinions  upon  points  of  law:  Longhead  v.  Bartholomew, 
Wright  (Ohio),  90;  Hoover  v.  Hanna,  3  Blackf.  48;  Bimn  v.  Riker, 
4   Johns.  434   (4  Am.   Dec.   292);   Jones  v.   Randall,   Cowp.   37; 


348  ORGANIZATION  AND  JURISDICTION 

Da  Costa  v.  Jones,  Id.  729 ;  Allen  v.  Hearn,  1  T.  R.  56 ;  Atherfold  v. 
Beard,  2  Id.  610;  Newling  v.  Francis,  3  /(i.  697;  Egerton  v.  Furze- 
man,  1  Car.  &  P.  613. 

As  we  are  distinctly  informed  by  both,  parties  that  this  is  a 
fictitious  suit,  without  inquiring  into  the  grounds  upon  which  the 
iudgment  was  rendered,  as  it  was  for  the  defendant,  and  only  for 
costs,  the  judgment  below  will  be  affirmed  at  the  plaintiff's  costs  in 
this  court. 

The  judgment  is  affirmed,  with  costs. 

Constitution  of  Massachusetts,  Pt.  II,  c.  iii,  §  2. 

Each  branch  of  the  legislature  as  well  as  the  governor  and  coun- 
cil shall  have  authority  to  require  the  opinions  of  the  justices  of 
the  Supreme  Judicial  Court  upon  important  questions  of  law  and 
upon  solemn  occasions.^ 

^  On  advisory  opinions,  see  Thayer,  Legal  Essays,  42-59. 


THE  SYSTEM  349 


CHAPTER    \T 
THE   COMMON-LAW  ACTIONS^ 

So  much  of  substantive  law  is,  for  historical  reasons,  bound  up  in  procedure 
that  it  is  highly  important  for  the  student  to  become  acquainted  at  once  with 
the  more  important  common-law  actions.  Although  these  actions  are  now  super- 
seded by  more  simple  and  flexible  forms  of  procedure,  they  have  given  rise  to,  or 
correspond  to,  important  distinctions  in  the  substance  of  the  law,  which  are  still 
of  daily  application. 

The  principal  common  law  actions  are  ten:  (1)  Ejectment,  (2)  Detinue,  (3) 
Replevin,  (4)  Debt,  (5)  Covenant,  (6)  Special  Assumpsit,  (7)  General  {Indebi- 
tatus) Assumpsit,  (8)  Trespass,  (9)  Trespass  en  the  Case  (Case),  (10)  Trover. 
This  is  the  final  form  of  these  actions,  after  they  had  developed  into  a  logical 
system.  Historically,  Ejectment,  Assumpsit,  Case,  and  Trover  were  develop- 
ments out  of  Trespass,  and  Assumpsit  and  Trover  were  in  form  to  the  end  actions 
of  Trespass  on  the  Case. 

Scheme  of  the  Common-law  Actions. 

1.  To  recover  property. 

To  recover  real  property, Real  ACTIONS 

The  real  actions  are  obsolete,  except  that  the  Writ  of  Entry  is  in  use  in 
Massachusetts,  New  Hampshire,  and  Maine. 

2.  To  recover  possession  — 

Of  real  property, EJECTMENT 

Of  personal  property  — 

acquired  lawfully  by  the  defendant,  but  subject  to  a  superior  right  of 

immediate  possession  in  the  plaintiff, DETINUE 

taken  by  the  defendant  from  the  plaintiff' REPLEVIN 

Replevin,  in  this  country,  has  almost  entirely  superseded  detinue,  and 
generally  lies  in  all  cases  to  recover  possession  of  personal  property. 

3.  To  recover  damages. 

(1)  Ex  contractu. 

To  recover  a  liquidated  sum  of  money,  due  upon  specialty,  record, 

statute,  or  simple  contract, DEBT 

To  recover  damages  for  breach  of  a  covenant,  or  promise  under  seal. 

Covenant 
To  recover  damages  for  breach  of  a  simple  contract, 

(Special)  Assumpsit 
To  recover  damages  upon  Quasi  Contract  (no  promise,  but  the  case 
dealt  with  in  law  as  if  there  had  been  one),    .    (GENERAL)  ASSUMPSIT 

'  Maitland,  Lectures  on  the  Forms  of  Action  at  Common  Law  (published  with 
his  lectures  on  Equity). 


350  THE  COMMON-LAW  ACTIONS 

Scheme  of  the  Common-law  Actions — {continued). 
(2)  Ex  delicto. 

To  recover  damages  for  a  direct  physical  interference  with  the  person 

or  property, Trespass 

Where  the  trespass  consists  in  taking  chattel  property  out  of  the 
plaintiff's  possession,  the  action  is  called  Trespass  de  Bonis  Aspor- 
tatis,  or  Trespass  de  bonis. 

Where  the  trespass  is  committed  upon  real  property,  the  action  is 
called  Trespass  Quare  Clausum  Fregit,  or  Trespass  qtiare  clausum. 

To  recover  damages  for  wrongful  acts  not  within  the  scope  of  other 
actions  (and  not  breaches  of  contract)  which  cause  injury,  without 
direct  physical  interference  with  person  or  property,  (e.g.,  Libel, 
Slander,  a  Nuisance,  Deceit), CASE 

To  recover  damages  for  the  conversion  of  chattels Trover 

Blackstone,  Commentaries,  III,  117. 

With  us,  in  England,  the  several  suits,  or  remedial  instruments 
of  justice  are  from  the  subject  of  them  distinguished  into  three 
kinds:   actions  personal,  real,  and  mixed. 

Personal  actions  are  such  whereby  a  man  claims  a  debt  or  per- 
sonal duty,  or  damages  in  lieu  thereof;  and,  likewise,  whereby  a 
man  claims  a  satisfaction  in  damages  for  some  injury  done  to  his 
person  or  property.  The  former  are  said  to  be  founded  on  contracts, 
the  latter  upon  torts  or  wrongs;  and  they  are  the  same  which  the 
civil  law  calls  "actiones  in  personam,  quae  adversus  eumintenduntur, 
qui  ex  contractu  vel  delicto  obligatus  est  aliquid  dare  vel  concedere." 
Of  the  former  nature  are  all  actions  upon  debt  or  promises;  of  the 
latter,  all  actions  for  trespasses,  nuisances,  assaults,  defamatory 
words,  and  the  like. 

Real  actions,  (or,  as  they  are  called  in  the  Mirror,  feodal  actions) 
which  concern  real  property  only,  are  such  whereby  the  plaintiff, 
here  called  the  demandant,  claims  title  to  have  any  lands  or  tene- 
ments, rents,  commons,  or  other  hereditaments,  in  fee-simple,  fee- 
tail,  or  for  term  of  life.  By  these  actions  formerly  all  disputes 
concerning  real  estates  were  decided ;  but  they  are  now  pretty  gen- 
erally laid  aside  in  practice,  upon  account  of  the  great  nicety 
required  in  their  management,  and  the  inconvenient  length  of  their 
process:  a  much  more  expeditious  method  of  trying  titles  being 
since  introduced,  by  other  actions  personal  and  mixed. 

Mixed  actions  are  suits  partaking  of  the  nature  of  the  other  two, 
wherein  some  real  property  is  demanded,  and  also  personal  damages 
for  a  wrong  sustained.  As,  for  instance,  an  action  of  waste:  which 
is  brought  by  him  who  hath  the  inheritance  in  remainder  or  reversion, 


THE  SYSTEM  351 

against  the  tenant  for  life  who  hath  committed  waste  therein, 
to  recover  not  only  the  land  wasted,  which  would  make  it  merely 
a  real  action;  but  also  treble  damages,  in  pursuance  of  the  statute 
of  Gloucester,  which  is  a  personal  recompense;  and  so  both,  being 
joined  together,  denominate  it  a  mixed  action. 

Extracts  from  Pollock  &  Maitland,  Hlstory  of  PZnglish  Law, 
bk.  II,  chap.  9. 

We  have  yet  to  speak  of  the  most  distinctively  English  trait  of 
our  medieval  law,  its  "formulary  system"  of  actions.  We  call  it 
distinctively  English ;  but  it  is  also,  in  a  certain  sense,  very  Roman. 
While  the  other  nations  of  western  Europe  were  beginning  to 
adopt  as  their  own  the  ultimate  results  of  Roman  legal  history, 
England  was  unconsciously  reproducing  that  history;  it  was  de- 
veloping a  formulary  system  which  in  the  ages  that  were  coming 
would  be  the  strongest  bulwark  against  Romanism  and  sever  our 
English  law  from  all  her  sisters. 

The  phenomenon  that  is  before  us  cannot  be  traced  to  any 
exceptional  formalism  in  the  procedure  which  prevailed  in  the 
England  of  the  eleventh  century.  All  ancient  procedure  is  formal 
enough,  and  in  all  probability  neither  the  victors  nor  the  van- 
quished on  the  field  at  Hastings  knew  any  one  legal  formula  or 
legal  formality  that  was  not  well  known  throughout  many  lands. 
No,  the  English  peculiarity  is  this,  that  in  the  middle  of  the  twelfth 
century,  the  old  oral  and  traditional  formalism  is  in  part  supplanted 
and  in  part  reinforced  by  a  new  written  and  authoritative  formalism 
for  the  like  of  which  we  shall  look  in  vain  elsewhere,  unless  we  go 
back  to  a  remote  stage  of  Roman  history.  Our  legis  actiones  give 
way  to  a  formulary  system.  Our  law  passes  under  the  dominion  of 
a  system  of  writs  which  flow  from  the  royal  chancery.  What  has 
made  this  possible  is  the  exceptional  vigor  of  the  English  king- 
ship, or  if  we  look  at  the  other  side  of  the  facts,  the  exceptional 
malleableness  of  a  thoroughly  conquered  and  compactly  united 
kingdom. 


The  last  years  of  Henry  III.'s  day  we  may  regard  as  the  golden 
age  of  the  forms.  We  mean  that  this  was  the  time  in  which  the 
number  of  forms  which  were  living  and  thriving  was  at  its  maxi- 
mum. Very  few  of  the  writs  that  had  as  yet  been  invented  had 
become  obsolete,  and,  on  the  other  hand,  the  common  law's  power 


352  THE  COMMON-LAW  ACTIONS 

of  producing  new  forms  was  almost  exhausted.  Bracton  can  still 
say,  Tot  erunt  formulcB  actionum  quot  sunt  formula  brevium. 
Only  some  slight  power  of  varying  the  ancient  formulas  will  be 
conceded  to  the  Chancellor;  all  that  goes  beyond  this  must  be  done 
by  statutes,  and  when  Edward  I.  is  dead,  statutes  will  do  little 
for  our  ordinary  private  law.  The  subsequent  development  of  forms 
will  consist  almost  entirely  of  modifications  of  a  single  action, 
namely  Trespass,  until  at  length  it  and  its  progeny  —  Ejectment, 
Case,  Assumpsit,  Trover — will  have  ousted  nearly  all  the  older 
actions.  This  process,  if  regarded  from  one  point  of  view,  repre- 
sents a  vigorous,  though  contorted,  growth  of  our  substantive  law; 
but  it  is  the  decline  and  fall  of  the  formulary  system,  for  writs  are 
being  made  to  do  work  for  which  they  were  not  originally  intended, 
and  that  work  they  can  do  only  by  means  of  fictions. 

Extracts  from  Fitzherbert,  Natura  Brevium.  (Sir  Anthony 
Fitzherbert  was  a  justice  of  the  Court  of  Common  Pleas  in 
the  reign  of  Henry  VHI.) 
Writ  of  Assise  of  Novel  Disseisin.  The  King  to  the  Sheriff 
&c.  A  hath  complained  to  us  that  B  unjustly  and  without  judg- 
ment hath  disseised  him  of  his  freehold  in  C  after  the  first  passage 
of  our  lord  King  Henry,  son  of  King  J.,  into  Gascoigne;  and  there- 
fore we  command  you,  that  if  the  aforesaid  A  shall  make  you  secure 
to  prosecute  his  claim,  then  cause  that  tenement  to  be  seized,  and  the 
chattels  which  were  taken  in  it,  and  the  same  tenement  with  the 
chattels  to  be  in  peace  until  the  first  assise,  when  our  justices  shall 
come  into  those  parts,  and  in  the  meantime  cause  twelve  free  and 
lawful  men  of  that  venue  to  view  that  tenement  and  their  names 
to  be  put  into  the  writs,  and  summon  them  by  good  summoners, 
that  they  be  before  the  justices  aforesaid  at  the  assise  aforesaid 
ready  to  make  recognizance  thereupon,  and  put  by  gages  and  safe 
pledges  the  aforesaid  B,  or  (if  he  shall  not  be  found)  his  bailiff, 
that  he  may  be  then  and  there  to  hear  that  recognizance  &c.  And 
have  there  the  summoners,  the  names  of  the  pledges,  and  this 
writ  &c. 

Writ  of  Ejectione  Firmae  (Ejectment).  A  writ  oiEjectione 
Firmae  lieth,  where  a  man  doth  lease  lands  for  years  &c.,  and  after- 
wards the  lessor  doth  eject  him,  or  a  stranger  doth  eject  him  of  his 
term,  the  lessee  shall  have  a  writ  of  Ejectione  Firmae;  and  the  form 
of  the  writ  is  such: 


DEBT  353 

The  King  to  the  Sheriff  «S:c.  If  A  shall  make  secure  &c.,  then  put 
&c.  B  that  he  be  before  our  justices  &c.,  to  shew  wherefore  with 
force  and  arms  he  entered  into  the  manor  of  E,  which  T  demised  to 
the  said  A  for  a  term  which  is  not  yet  passed,  and  the  goods  and 
chat-tels  of  him  the  said  A  to  the  value  of  &c.,  found  in  the  same 
mancrr,  took  and  carried  away  and  ejected  him,  the  said  A,  from  his 
farm  aforesaid,  and  other  WTongs  to  him  did,  to  the  great  damage 
of  &c. 

Writ  of  Debt.  A  writ  of  debt  properly  lieth  where  a  man 
oweth  another  a  certain  sum  of  money  by  obligation,  or  by  bargain 
for  a  thing  sold,  or  by  contract,  or  upon  a  loan  made  by  the  creditor 
to  the  debtor,  and  the  debtor  will  not  pay  the  debt  at  the  day 
appointed  that  he  ought  to  pay  it,  then  the  creditor  shall  have  an 
action  of  debt  against  him  for  the  same;  and  it  may  be  sued  in  the 
county  before  the  sheriff  by  justicies,  as  well  as  in  the  Common 
Pleas;  and  the  form  of  the  writ  is  sometimes  in  the  debet  and 
detinet,  and  sometimes  in  the  detinet  only  and  not  in  the  debet  and  if 
it  be  in  the  debet  it  shall  abate.  It  shall  always  be  in  the  debet  and 
detinet,  when  he  who  makes  the  bargain  or  contract,  or  lends  the 
money,  or  he  to  whom  the  bond  is  made,  bringeth  the  action  against 
him  who  is  bounden,  or  party  to  the  contract  or  bargain,  or  unto  the 
lending  of  money.  ,  .  .  But  if  a  man  sell  twenty  quarters  of 
wheat  or  a  horse ;  if  he  bring  debt  for  the  horse  the  writ  shall  be 
in  the  detinet  only;  and  the  form  of  the  writ,  sued  in  the  county 
before  the  sheriff,  for  money,  is  such: 

The  King  to  the  Sheriff  of  Surry,  Greeting:  We  command  you 
that  you  justice  A  that  justly  and  without  delay  he  render  to  B 
twenty  shillings  which  he  oweth  to  him  as  it  is  said,  as  he  can 
reasonably  show  that  he  ought  to  render  it  to  him,  that  we  may  hear 
no  more  clamor  for  want  of  justice  &c.    Witness  &c. 

And  if  the  writ  of  debt  be  for  other  goods  or  chattels  than  money, 
then  the  writ  of  debt  shall  be  such: 

The  King  to  the  Sheriff  &c.  We  command  you  that  you  justice 
A  &c.,  that  he  render  to  B  a  certain  book,  or  a  certain  cup,  or  a 
certain  horse,  or  two  lambs  of  the  price  of  &c.,  which  he  unjustly 
detains  from  him  &c. 

And  the  form  of  the  writ  of  debt  in  the  Common  Pleas  is: 

The  King  to  the  Sheriff  &c.  Command  A  that  justly  &c.  he 
render  to  B  one  hundred  shillings,  which  he  owes  to  him  and  unjustly 
detains,  as  it  is  said :  and.unless  he  will  do  it,  and  if  the  said  B  shall 


354  THE  COMMON-LAW  ACTIONS 

make  you  secure  &c.,  then  summon  by  good  summoners  the  afore- 
said A  &c. 

Writ  of  Cov'ENANT.  Writs  of  covenant  are  of  divers  natures; 
for  some  are  merely  personal,  and  some  covenants  are  real ;  to  have 
a  real  thing,  as  lands  and  tenements;  as  a  covenant  to  levy  a  fine 
of  land  is  a  real  covenant.  But  a  writ  of  covenant  which  is  more 
personal,  is  where  a  man  by  deed  doth  covenant  with  another  to 
build  him  a  house  &c.,  or  to  serve  him,  or  to  infeoff  him  &c.;  and 
he  with  whom  the  covenant  was  so  made  shall  have  a  writ  of  cove- 
nant against  him.  And  here  is  a  note  in  the  Register,^  which  is 
this:  a  writ  of  covenant  ought  not  to  be  made  according  to  law 
Merch.  without  a  deed,  because  no  plea  of  covenant  can  be  without 
deed,  and  every  man  ought  to  be  judged  according  to  his  deed,  and 
not  by  another  law ;   and  the  form  of  the  writ  is  such : 

The  King  to  the  Sheriff  &c.  Command  A  that  &c.  he  keep  his 
covenant  with  B  &c.,  touching  the  damage  and  loss  by  the  breach 
of  trust  and  default  of  W,  the  son  of  R,  apprentice  of  the  afore- 
said B,  committed  within  six  years  to  be  restored  to  him  the  said  B, 
and  unless  &c. 

Writ  of  Detinue.  A  writ  of  detinue  in  case  lieth  where  a  man 
delivereth  goods  or  chattels  unto  another  to  keep,  and  afterwards 
he  will  not  deliver  them  back  again;  then  he  shall  have  an  action 
of  detinue  of  those  goods  and  chattels ;  and  so  if  a  man  deliver  goods 
or  money  put  up  in  bags,  or  in  a  chest,  or  in  a  cupboard,  unto 
another  to  kec]),  and  he  will  not  redeliver  the  goods  or  the  money 
in  the  bags;  he  to  whom  they  should  be  delivered  shall  have  a  writ 
of  detinue  for  those  goods  &c.  But  if  a  man  deliver  money  not  in 
any  bag  or  chest  to  redeliver  back,  or  to  dcli\'er  o\cr  unto  a  stranger ; 
now  he  to  whom  the  money  should  be  delivered  shall  not  have  an 
action  of  detinue  for  the  m(jney,  but  a  writ  of  account;  because 
detinue  ought  to  be  for  a  thing  which  is  certain;  as  of  money  in 
bags,  or  of  a  horse,  or  of  a  hundred  cows,  or  such  certain  things. 
And  this  writ  may  be  vicounticl  and  shall  be  sued  before  the  sheriff 
in  the  C\)unty  if  the  plaintiff  ])lease,  or  he  may  sue  it  in  the  Common 
Pleas ;  and  the  form  of  the  writ  in  the  Common  Pleas  is : 

The  King  to  the  Sheriff  &c.  Command  A  &c.  that  &c.  he  render 
to  B  one  charter  which  he  unjustly  detains  from  him,  as  he  saith 
and  unless  &c. 

'  Register  —  Registrum  Brevium,  the  register  of  original  writs. 


TRESPASS         ■  355 

Writ  of  Trespass.  There  are  two  manners  of  writs  of  trespass: 
One  is  of  a  trespass  which  is  vicounticl,  and  is  directed  unto  the 
sheriff  and  is  not  returnable,  but  shall  be  determined  in  the  county 
before  the  sheriff;  and  in  this  writ  he  shall  not  say  quare  vi  et  armis 
&c.,  but  the  form  of  the  writ  is  such: 

The  King  to  the  Sheriff  of  Lincolnshire,  Greeting:  W  of  B  hath 
complained  unto  us,  that  C  made  an  assault  upon  him  the  said  W 
at  N,  and  beat,  wounded  and  ill  treated  him,  and  other  enormous 
things  to  him  did,  to  the  no  small  damage  and  grievance  of  him  the 
said  W.  And  therefore  we  command  you,  that  you  hear  that  plaint, 
and  afterwards  justly  cause  him  to  be  thereupon  brought  before 
you,  that  we  may  hear  no  more  clamor  thereupon  for  want  of 
justice.     Witness  &c. 

And  by  this  writ  the  sheriff  shall  hear  and  determine  the  trespass, 
&c.  by  inquest  according  to  the  common  law.  .  .  .  And  so  for 
every  manner  of  trespass  done,  a  man  may  chuse  to  have  such 
a  writ  directed  unto  the  sheriff,  to  end  the  matter  before  him  in  the 
county,  or  to  sue  a  writ  unto  the  sheriff  returnable  in  the  Common 
Pleas  or  the  King's  Bench. 

And  if  the  writ  of  trespass  be  returnable,  then  the  writ  shall  be 
of  another  form,  for  then  these  words,  vi  et  armis  shall  be  in  the 
writ;  and  if  it  want  those  words,  the  writ  shall  abate;  if  they  be 
not  writs  of  Trespass  upon  the  Case;  which  writs  of  Trespass  shall 
not  have  these  words  quare  vi  et  armis  in  the  writ,  although  they 
are  returnable  in  the  Common  Pleas  or  King's  Bench ;  and  if  they 
have  the  words  quare  vi  et  armis  in  the  writs,  it  shall  be  good  cause 
to  abate  the  writs.  And  the  form  of  a  writ  returnable  in  the  King's 
Bench  is  such : 

The  King  to  the  Sheriff  &c.  If  A  shall  make  you  secure  &c., 
then  put  by  gages  and  safe  pledges  B  that  he  be  before  us  on  the 
morrow  of  All  Souls,  wheresoever  we  shall  then  be  in  England  (and 
if  it  be  returnable  in  the  Common  Pleas,  then  thus;  before  our 
Justices  at  Westminster)  to  show  wherefore  with  force  and  arms 
he  made  an  assault  upon  the  said  A  at  N  and  beat  and  wounded  and 
ill  treated  him,  so  that  his  life  was  despaired  of,  and  other  enormous 
things  to  him  did,  to  the  damage  of  him  the  said  A  and  against 
our  peace.  And  have  there  the  names  of  the  pledges  and  this  writ. 
Witness  &c. 

Writ  of  Trespass  on  the  Case.  There  is  another  form  of 
writ  of  trespass,  upon  the  case,  which  is  to  be  sued  in  the  Common 


356  THE  COMMON-LAW  ACTIONS 

Pleas  or  King's  Bench;  and  in  that  writ  he  shall  not  say  vi  et  armis 
&c..  hut  in  the  end  of  the  writ  he  shall  say  contra  pacem;  and  the 
form  is  such : 

The  King  to  the  Sheriff  &c.  If  Maud  of  D  &c.,  then  put  &c., 
that  he  be  &c.  to  answer  as  well  us  as  Maud  wherefore,  seeing  that 
the  same  Maud  lately  in  our  court  obtained  our  certain  writ  of 
prohibition  against  the  aforesaid  I  that  he  should  not  prosecute  any 
plea  in  the  Court  Christian  touching  chattels  and  debts,  which  do 
not  concern  testament  or  matrimony,  and  the  said  Maud  delivered 
the  said  writ  to  the  aforesaid  I  at  C,  he  the  said  I,  ha\ing  received 
our  said  writ  there,  cast  it  into  the  dirt  and  trod  it  under  his  feet, 
and  also  hath  prosecuted  the  plea  aforesaid  in  the  same  Court 
Christian,  in  contempt  of  us,  and  to  the  great  damage  of  the  said 
Maud,  and  against  our  peace.     And  have  &c. 

Another  Writ:  Wherefore  in  the  water  of  Plim,  along  which, 
between  Humber  and  Gaunt,  there  is  a  common  passage  for  ships 
and  boats,  he  fixed  piles  across  the  water,  whereby  a  certain  ship, 
with  thirty  quarters  of  malt  of  him  the  said  W  was  sunk  under  water, 
and  twenty  quarters  of  the  malt,  of  the  price  of  one  hundred  shill- 
ings perished,  and  other  wrongs,  &c. 

Statute  of  Westminster,  II  (13  Edward  I.,  St.  1)  (1285). 

And  whensoever  from  henceforth  it  shall  fortune  in  the  Chancery 
that  in  one  case  a  writ  is  found,  and  in  like  case,  falling  under  like 
law  and  requiring  like  remedy  is  found  none,  the  clerks  of  the  chan- 
cery shall  agree  in  making  the  writ,  or  the  plaintiffs  may  adjourn 
it  until  the  next  parliament,  and  let  the  cases  be  written  in  which 
they  cannot  agree,  and  let  them  refer  themscKes  until  the  next  par- 
liament, by  consent  of  men  learned  in  the  law,  a  writ  shall  be  made, 
lest  it  might  happen  after  that  the  court  should  long  time  fail  to  minis- 
ter justice  with  complainants.      (Translation  of  Cambridge  Edition.) 

Extracts  from  Stephen,  Principles  of  Pleading  in  Civil 
Actions  (1824),  11,  14. 
There  are  some  peculiarities  attached  to  the  Action  of  Ejectment 
which  require  explanation.  As  a  remedy  for  recovery  of  land,  its 
history  is  as  follows.  At  a  very  early  period,  that  is,  soon  after  the 
reign  of  Ed.  III.,  real  and  mixed  actions  began  gradually  to  fall 
into  neglect,  in  consequence  of  their  being  more  dilatory  and 
intricate  in  their  forms  of  proceeding  than  personal  actions,  and 
of  their  being  cognizable  only  in  the  Court  of  Common  Pleas. 


EJECTMENT  357 

In  lieu  of  them,  recourse  was  had  to  certain  personal  actions, 
which,  though  they  did  not  claim  the  specific  recovery  of  land  (like 
those  of  the  real  and  mixed  classes),  were  yet  attended  with  inci- 
dents that  indirectly  produced  that  benefit.  Of  these,  the  principal, 
and  that  which  is  alone  retained  in  modern  practice,  was  the  action 
of  ejectment  —  ejectio  firmae  —  in  which  damages  were  claimed 
by  a  tenant  for  a  term  of  years,  complaining  of  forcil)le  ejection  or 
ouster  from  the  land  demised.  In  favor  of  this  mode  of  remedy, 
the  courts  determined  that  the  plaintiff  was  entitled  not  only  to 
recover  the  damages  claimed  by  the  action,  but  should  also,  by  way 
of  collateral  and  additional  relief,  recover  possession  of  the  land 
itself  for  the  term  of  years  of  which  he  had  been  ousted. 

In  consequence  of  the  establishment  of  this  doctrine,  which  gave 
ejectment  an  efTect  similar  to  that  of  a  real  or  mixed  action,  claim- 
ants of  land  were  led  to  have  recourse  to  it,  in  lieu  of  those  incon- 
venient remedies.  Regularly,  indeed,  none  could  resort  to  this  form 
of  suit  but  those  who  had  sustained  ouster  from  a  term  of  years, 
such  being  the  shape  of  the  complaint;  but  it  was  rendered  much 
more  extensive  in  its  application,  by  the  invention  of  a  fictitious 
system  of  proceeding,  which  enabled  claimants  of  land,  in  almost 
every  instance,  upon  whatever  title  they  relied  (whether  term  of 
years  or  freehold),  to  bring  their  cases  ostensibly  within  the  scope 
of  this  remedy.  This  fictitious  method,  being  favored  and  protected 
by  the  courts,  passed  into  regular  practice;  and  the  consequence  is, 
that  ejectment  has  long  been  the  usual  remedy  for  the  specific  re- 
covery of  real  property.  Whenever  the  case  is  such  that  the  claim- 
ant has  in  him  the  right  of  entry,  the  fiction  on  which  an  ejectment 
rests  is  held  to  be  allowable.  And  as  in  every  case  of  lawful  claim 
to  land,  there  is  now  a  right  of  entry,  unless  the  circumstances  are 
such  that  an  action  of  writ  of  right  of  dower,  dower,  or  quare  im- 
pedit  is  applicable,  it  follows  that  under  all  other  circumstances  an 
action  of  ejectment  may  be  brought;  and  wherever  it  may  be 
brought,  it  forms  (since  the  late  abolition  of  real  and  mixed  actions 
in  general)  the  only  remedy. 

Of  personal  actions,  the  most  common  are  the  following:  Debt, 
Covenant,  Detinue,  Trespass,  Trespass  on  the  Case,  and  Replevin. 

It  is  provided  by  the  statute  2  Will.  IV.  c.  39,  that  personal 
actions  in  the  superior  courts  shall  be  commenced  by  writ  of  sum- 
mons, or  writ  of  capias,  in  such  forms  as  are  given  by  the  act  - — 
by  summons  where  the  defendant  is  not  to  be  arrested  —  by  capias 
where  he  is. 


358  THE  COMMON-LAW  ACTIONS  ^ 

The  Action  of  Debt  lies  where  a  party  claims  the  reco^•cr^■  of  a  debt, 
i.e.,  a  liquidated  or  certain  sum  of  money  alleged  to  be  due  to  him. 

The  form  of  Summons  in  Debt  is  as  follows: 

William  the  Fourth,  &c.,  to  C.  D.,  of  &c.,  in  the  county  of , 

greeting.  We  command  you  (or  as  before  or  often,  we  ha\e  com- 
manded you)  that  within  eight  days  after  the  service  of  this  writ 
on  you,  inclusi\e  of  the  day  of  such  serxice,  you  do  cause  an  appear- 
ance to  be  entered  for  you  in  our  Court  of  ,  in  an  action  of 

debt  at  the  suit  of  A.  B.  And  take  notice  that  in  default  of  your 
so  doing,  the  said  A.  B.  may  cause  an  appearance  to  be  entered  for 
you,  and  proceed  therein  to  judgment  and  execution.  Witness 
,  at  Westminster,  the day  of . 

The  form  of  Capias  in  Debt  is  as  follows: 

W^illiam   the   Fourth,    &:c.,    to   the   Sheriff  ,   greeting.     We 

command  you  (or  as  before  or  often,  we  have  commanded  you) 
that  you  omit  not  by  reason  of  any  liberty  in  your  bailiwick,  but 

that  you  enter  the  same,  and  take  C.  D.  of ,  if  he  shall  be  found 

in  your  bailiwick,  and  him  safely  keep  until  he  shall  have  gi\en  you 
bail,  or  made  deposit  with  you,  according  to  law,  in  an  action  of 
debt  at  the  suit  of  A.  B.,  or  until  the  said  C.  D.  shall  by  other  law- 
ful means  be  discharged  from  your  custody.  And  we  do  further 
command  you,  that  on  execution  hereof  you  do  deliver  a  copy 
hereof  to  the  said  C.  D.  And  we  hereby  require  the  said  C.  D. 
to  take  notice  that  within  eight  days  after  execution  hereof  on  him, 
inclusive  of  the  day  of  such  execution,  he  should  cause  special  bail 

to  be  put  in  for  him  in  our  Court  of ,  to  the  said  action,  and 

that  in  default  of  his  so  doing,  such  proceedings  may  be  had  and 
taken  as  mentioned  in  the  warning  hereunder  written,  or  indorsed 
hereon.  And  we  do  further  command  you,  the  said  sheriff,  that 
immediately  after  the  execution  hereof,  you  do  return  this  writ  to 
our  said  court  together  with  the  manner  in  which  you  shall  have 
executed  the  same,  and  the  day  of  the  execution  hereof;  or  that  if 
the  same  shall  remain  unexecuted,  then  that  you  do  so  return  the 
same  at  the  expiration  of  four  calendar  months  from  the  date 
hereof,  or  sooner,  if  you  shall  be  thereto  required  by  order  of  the 

said  court,  or  of  any  judge  thereof.     Witness ,  at  Westminster, 

the day  of . 

The  Action  of  Covenant  lies  where  a  party  claims  damages  for 
a  breach  of  covenant,  i.e.,  of  a  promise  under  seal. 

The  form  of  the  Summons  and  Capias  is  similar  to  that  in  Debt 
(the  name  of  the  action  only  excepted). 


TRESPASS  ON  THE  CASE  359 

The  Action  of  Detinue  lies  where  a  party  claims  the  specific 
recovery  of  goods  and  chattels  or  deeds  and  writings,  detained 
from  him.  This  remedy  is  in  somewhat  less  frequent  use  than  any 
of  the  other  personal  actions  above  enumerated.  The  form  of  the 
Summons  and  Capias  is  smiilar  to  that  in  Debt  (the  name  of  the 
action  only  excepted). 

The  Action  of  Trespass  lies  where  a  party  claims  damages  for  a 
trespass  committed  against  him.  A  trespass  is  an  injury  com- 
mitted with  violence,  and  this  violence  may  be  either  actual  or 
implied;  and  the  law  will  imply  violence,  though  none  is  actually 
used,  where  the  injury  is  of  a  direct  and  immediate  kind,  and  com- 
mitted on  the  person,  or  tangible  and  corporeal  property,  of  the 
plaintiff.  Of  actual  violence,  an  assault  and  battery  is  an  instance; 
of  implied,  a  peaceable  but  wrongful  entry  upon  the  plaintiff's 
land.  The  form  of  the  Summons  and  Capias  is  similar  to  that  in 
Debt  (the  name  of  the  action  only  excepted). 

The  Action  of  Trespass  upon  the  Case  lies  where  a  party  sues  for 
damages  for  any  wrong  or  cause  of  complaint  to  which  covenant 
or  trespass  will  not  apply.  This  action  originates  in  the  power 
given  by  the  statute  of  Westminster  2,  to  the  clerks  of  the  Chancery 
to  frame  new  writs  in  consimili  casu  with  writs  already  known. 
Under  this  power  they  constructed  many  writs  for  different  injuries, 
which  were  considered  as  in  consimili  casu  with,  that  is,  to  bear 
a  certain  analogy  to,  a  trespass.  The  new  writs  invented  for  the 
cases  supposed  to  bear  such  analogy,  received,  accordingly,  the 
appellation  of  writs  of  trespass  on  the  case  {brevia  de  transgressione 
super  casum),  as  being  founded  on  the  particular  circumstances  of 
the  case  thus  requiring  a  remedy,  and  to  distinguish  them  from  the 
old  writ  of  trespass;  and  the  injuries  themselves,  which  are  the  sub- 
ject of  such  writs,  were  not  called  trespasses,  but  had  the  general 
names  of  torts,  wrongs,  or  grievances.  The  writs  of  trespass  on 
the  case,  though  invented  thus,  pro  re  nata,  in  various  forms, 
according  to  the  nature  of  the  different  wrongs  which  respectively 
called  them  forth,  began  nevertheless,  to  be  viewed  as  constituting, 
collectively,  a  new  individual  form  of  action;  and  this  new  genus 
took  its  place,  by  the  name  of  Trespass  on  the  Case,  among  the 
more  ancient  actions  of  debt,  covenant,  trespass,  &c.  Such  being 
the  nature  of  this  action,  it  comprises,  of  course,  many  different 
species.  There  are  two,  however,  of  more  frequent  use  than  any 
other  species  of  trespass  on  the  case,  or,  perhaps,  than  any  other 
form  of  action  whatever.     These  are  assumpsit  and  trover. 


360  THE   COMMON-LAW  ACTIONS 

The  Action  of  Assumpsit  lies  where  a  party  claims  damages  for 
breach  of  simple  contract,  i.e.,  a  promise  not  under  seal.  Such 
jDromises  may  be  expressed  or  implied ;  and  the  law  always  implies 
a  promise  to  do  that  which  a  party  is  legally  liable  to  perform. 
This  remedy  is  consequently  of  very  large  and  extensive  application. 
The  action  of  trover  is  that  usually  adopted  (by  preference  to  that 
of  detinue)  to  try  a  disputed  question  of  property  in  goods  and 
chattels.  In  form,  it  claims  damages;  and  is  founded  on  a  sug- 
gestion in  the  writ  (which  in  general  is  a  mere  fiction),  that  the 
defendant  found  the  goods  in  question,  being  the  property  of  the 
plaintiff;  and  proceeds  to  allege  that  he  converted  them  to  his  own 
use. 

The  form  of  the  Summons  and  Capias  in  Trespass  on  the  Case 
is  similar  to  that  in  Debt  (the  name  of  the  action  only  excepted). 

The  Action  of  Replevin,  though  entertained  in  the  superior  courts 
is  not  commenced  there;  and  the  writs  of  summons  and  capias, 
provided  by  2  Will.  IV.  c.  29,  for  the  commencement  of  personal 
suits  in  the  superior  courts,  are  consequently  not  applicable  to  this 
action.  A  replevin  is  entertained  in  the  superior  courts  by  virtue 
of  an  authority  which  they  exercise  of  removing  suits,  in  certain 
cases,  from  an  inferior  jurisdiction,  and  transferring  them  to  their 
own  cognizance.  Where  goods  have  been  distrained,  a  party  mak- 
ing plaint  to  the  sheriff  may  have  them  replevied,  that  is,  redelivered 
to  him  upon  giving  security  to  prosecute  an  action  against  the  dis- 
trainer for  the  purpose  of  trying  the  legality  of  the  distress;  and  — 
if  the  right  be  determined  in  favor  of  the  latter  —  to  return  the 
goods.  The  action  so  prosecuted  is  called  an  action  of  replevin, 
and  is  commenced  in  the  county  court.  From  thence  it  is  removed 
into  one  of  the  superior  courts  by  a  writ  either  of  recordari  facias 
loquelam  or  accedas  ad  curiam.  In  form,  it  is  an  action  for  dam- 
ages, for  the  illegal  taking  and  detaining  of  the  goods  and  chattels. 
It  is  held  that  a  replevin  may  be  had,  and  an  action  of  replevin 
brought,  upon  other  kinds  of  illegal  taking,  besides  that  by  way  of  a 
distress;  but  in  no  other  case  is  the  j^roceeding  now  known  in 
practice. 

New  York  Code  of  Civil  Procedure  (1849),  §  69. 

The  distinction  between  actions  at  law  and  suits  in  equity, 
and  the  forms  of  all  such  actions  and  suits,  heretofore  existing,  are 
abolished;  and,  there  shall  be  in  this  state,  hereafter,  but  one  form 
of  action,  for  the  enforcement  or  protection  of  private  rights  and 


'  REFORMED  PROCEDURE  361 

the  redress  of  private  wrongs,  which  shall  be  denominated  a  civil 
action. 

Massachusetts  Practice  Act  (1851),  §  1. 

Sect.  1.     There  shall  be  only  three  divisions  of  personal  actions: 

First.  Actions  of  Contract,  which  shall  include  those  now 
known  as  actions  of  assumpsit,  covenant,  and  debt,  except  for 
penalties. 

Second.  Actions  of  Tort,  which  shall  include  those  now  known 
as  actions  of  trespass,  trespass  on  the  case,  trover,  and  all  actions 
for   penalties. 

Third.     Actions  of  Replevin.- 

Supreme  Court  of  Judicature  Act  (England,  1873),  Schedule 
I,  rules  1  and  2. 

1.  All  actions  which  have  hitherto  been  commenced  by  writ  in 
the  Superior  Courts  of  Common  Law  at  Westminster,  or  in  the 
Court  of  Common  Pleas  at  Lancaster,  or  in  the  Court  of  Pleas  at 
Durham,  and  all  suits  which  have  hitherto  been  commenced  by 
bill  or  information  in  the  High  Court  of  Chancery,  or  by  a  cause 
in  rem  or  in  personam  in  the  High  Court  of  Admiralty,  or  by  cita- 
tion or  otherwise  in  the  Court  of  Probate,  shall  be  instituted  in 
the  High  Court  of  Justice  by  a  proceeding  to  be  called  an  action. 

All  other  proceedings  in  and  applications  to  the  High  Court  may, 
subject  to  Rules  of  Court,  be  taken  and  made  in  the  same  manner 
as  they  would  have  been  taken  and  made  in  any  Court  in  which 
any  proceeding  or  application  of  the  like  kind  could  have  been 
taken  or  made  if  this  Act  had  not  passed. 

2.  Every  action  in  the  High  Court  shall  be  commenced  by  a 
writ  of  summons,  which  shall  be  endorsed  with  a  statement  of  the 
nature  of  the  claim  made,  or  of  the  relief  or  remedy  required  in  the 
action,  and  which  shall  specify  the  Division  of  the  High  Court  to 
which  it  is  intended  that  the  action  should  be  assigned. 

Pomeroy,  Code  Remedies  (1876),  sees.  28,  29. 

28.  In  the  year  1848  the  Legislature  of  New  York  adopted  the 
Code  of  Procedure.  The  fundamental  principles  of  this  code,  so 
far  as  it  is  now  necessary  to  notice  them  without  going  into  detail, 
are  the  following:  (1)  The  abolition  of  the  distinction  between 
suits  in  equity  and  actions  at  law,  and  the  distinctions  between 
legal  and  equitable  procedure,  so  far  as  such  an  amalgamation  or 


362  THE   COMMON-LAW  ACTIONS 

consolidation  is  possible  with  the  judicial  institutions  which  have 
been  retained ;  (2)  The  abolition  of  all  common-law  forms  of  action, 
and  the  establishment  of  one  ordinary,  universal  means  by  which 
rights  are  maintained  and  duties  enforced  in  a  judicial  controversy, 
called  a  "civil  action";  (3)  The  application  to  this  "civil  action" 
of  the  familiar  equitable  rather  than  legal  rules,  methods  and 
principles,  so  far  as  practicable,  and  especially  in  reference  to  the 
parties,  the  pleadings,  and  to  the  form  and  character  of  the  judg- 
ment. It  is  evident,  from  the  most  cursory  examination  of  this  code, 
that  its  authors,  and  presumably  the  legislature,  intended  that  the 
various  provisions  which  the>'  introduced  in  reference  to  the  parties 
to  an  action,  to  the  pleadings  therein,  and  to  the  judgment  which 
might  be  rendered,  and  which  were  a  concise  statement  of  the  well- 
settled  doctrine  of  equity  relating  to  these  subjects,  should  apply 
fully  and  freely  to  all  actions  which  might  thereafter  be  brought,  and 
should  not  be  confined  to  actions  that,  under  the  former  practice, 
would  have  been  equitable.  Whether  the  courts  have  at  all  times 
recognized  and  carried  out  this  plain  intention  of  the  statute  may 
well  be  doubted.  I  have  been  careful  in  the  above  statement  as 
to  the  union  of  law  and  equity.  The  language  of  the  code  is  as 
follows:  "The  distinctions  between  actions  at  law  and  suits  in  equity, 
and  the  forms  of  all  such  actions  and  suits  heretofore  existing,  are 
abolished;  and  there  shall  be  in  this  state  hereafter  but  one  form 
of  action  for  the  enforcement  or  protection  of  private  rights  and  the 
redress  of  private  wrongs,  which  shall  be  denominated  a  civil  action." 
A  subsequent  provision,  based  upon  the  clause  in  the  state  con- 
stitution which  preserves  the  jury  trial  "in  all  cases  in  which  it  has 
heretofore  been  used,"  recognizes  the  fact  that  the  jury  trial  must 
still  be  retained  in  all  actions  which  were  before  denominated  legal, 
with  the  unimportant  exception  which  formerly  existed,  —  namely, 
where  the  trial  will  require  the  examination  of  a  long  account,  — 
and  thus,  in  express  terms,  prevents  an  absolute  identity  in  the 
judicial  proceedings  which  result  in  remedies  that  w^ould  have  been 
legal  and  in  those  which  result  in  remedies  that  would  have  been 
equitable.  As  I  have  already  said,  the  perpetuation  of  the  very 
fundamental  element  of  difference  between  the  trial  at  law  and  the 
trial  in  equity  —  and  the  perpetuation  cannot  be  avoided  as  long 
as  the  constitution  remains  unchanged  in  this  respect  —  prevents 
a  complete  removal  of  the  difference  between  legal  and  equitable 
])rocedure  and  the  absolute  union  of  law  and  equity  into  one  homo- 
geneous system.    How  far  the  differences  between  the  final  remedies 


REFORMED  PROCEDURE  3G3 

which  courts  of  law  granted  exclusively,  —  namely,  the  recovery  of 
a  specific  tract  of  land  or  of  a  specific  chattel,  and  the  recovery  of 
money  in  the  form  of  pecuniary  compensation,  —  and  the  infinite 
variety  of  special  remedies  which  courts  of  equity  were  accus- 
tomed to  grant,  may  in  themselves  prevent  such  a  perfect  union, 
I  shall  discuss  and  attempt  to  determine  in  a  subsequent  chapter. 

29.  The  New  York  Code,  in  respect  to  the  fundamental  principles 
and  provisions  which  I  have  stated,  has  been  adopted  in  twenty-two 
states  and  territories  of  this  country  —  in  the  states  of  Ohio,  Indi- 
ana, Wisconsin,  Iowa,  Minnesota,  Kentucky,  Missouri,  Kansas, 
Nebraska,  Nevada,  Oregon,  California,  North  Carolina,  South 
Carolina,  Florida,  Arkansas,  Connecticut,  and  in  the  Territories  of 
Washington,  Montana,  Idaho,  Dakota,  Wyoming,  Arizona,  Colo- 
rado. I  need  not  now  compare  these  different  state  and  territorial 
codes  in  their  details;  it  is  enough  for  my  present  purpose  to  say 
that  they  all  embody  the  same  three  fundamental  principles. 


364  ELEMENTS  OF  PROCEDURE 


CHAPTER  VII 
THE  ELEMENTS  OF  PROCEDURE 

1.    AT   LAW 

Smith,  Elementary  View  of  the  Proceedings  in  an  Action 
AT  Law,  19. 

The  history  and  constitution  of  the  courts  in  which  an  action  is 
commenced,  having  been  thus  stated,  it  is  time  to  proceed  to  the 
consideration  of  the  steps  taken  in  the  action  itself.  Before  doing 
so,  however,  it  is  right  to  state  in  what  manner  these  formal  steps 
are  liable  to  be  afifected  or  controlled  by  the  summary,  or,  as  it  is 
sometimes  called,  equitable  jurisdiction,  of  the  courts,  for  the  juris- 
diction of  the  superior  courts  is  of  two  descriptions,  summary  and 
formal.  The  latter  consists  in  the  sanction  given  by  the  authority 
of  the  court  to  those  formal  de  cursu  proceedings  which  constitute 
the  ordinary  and  regular  steps  in  a  suit ;  thus,  it  is  by  virtue  of  its 
formal  jurisdiction  that  the  court  issues  a  writ  to  compel  the  defend- 
ant to  appear;  that  it  allows  the  plaintiff  to  sign  judgment  against 
him  if  he  make  default  in  pleading;  that  it  issues  process  com- 
manding the  sheriff  to  convene  a  jury  for  the  purpose  of  trying  the 
cause;  and,  finally,  that  it  awards  execution  in  favor  of  the  suc- 
cessful party.  This  is  all  done  by  virtue  of  its  formal  de  cursu 
jurisdiction. 

But  the  courts  have  another  sort  of  jurisdiction,  a  jurisdiction 
exercised  in  any  stage  of  the  suit  in  which  it  becomes  necessary,  and 
enabling  them,'  in  a  summary  manner,  and  on  equitable  principles, 
to  prevent  hardships,  irregularities,  and  abuses,  which  would  other- 
wise take  place  in  the  course  of  proceedings.  This  is  called  their 
summary  jurisdiction,  and  is  exercised  by  making  rules  and  orders; 
not  that  every  rule  emanates  from  the  equitable  jurisdicton  of  the 
court ;  some  rules  there  are  which  constitute  part  of  its  formal  de 
cursu  proceedings;  for  instance,  a  rule  to  plead,  is  as  regular  a  step 
as  the  plea  itself.  It  is  not,  therefore,  intended  to  state,  that  all 
rules,  or  all  orders,  emanate  from  the  summary  and  equitable  juris- 
diction of  the  court,  but  those  only,  on  granting  or  refusing  which, 
the  court  or  judge  hears  argument  and  exercises  a  discretion. 


AT  LAW  365 

In  treating  of  the  summary  jurisdiction  of  the  Courts,  we  will 
inquire,  1st,  in  what  cases  it  exists;   2ndly,  how  it  is  exercised. 

First,  then,  when  does  it  exist?  It  exists,  either  at  common  law, 
or  under  the  provisions  of  certain  acts  of  Parliament.  So  far  as  it 
exists  at  common  law,  it  is  calculated  to  effect  one  of  four  purposes. 

1 .  To  prevent  the  regulations  of  the  Courts  from  being  infringed. 

2.  To  prevent  their  authority  from  being  abused. 

3.  To  prevent  it  from  producing  hardship. 

4.  To  enforce  good  conduct  on  the  part  of  those  who  are  pecu- 
liarly within  their  jurisdiction. 

First,  then,  the  Court  interferes  summarily,  to  prevent  breaches 
of  its  own  regulations.  Under  this  head  do  all  those  cases  range 
themselves,  in  which  it  interferes  to  set  aside  proceedings  for  irreg- 
ularity. ...  In  every  case  where  a  rule  or  regulation  of  the 
Court  is  infringed,  it  will,  on  application,  set  aside  the  proceeding 
which  has  infringed  it.  But  it  is  most  important  to  remember,  that 
every  application  upon  this  score  must  be  made  as  speedily  as 
possible.     .     .     . 

Secondly.  —  The  Court  exercises  its  summary  jurisdiction  to  pre- 
vent its  own  process  or  authority  from  being  abused.  Thus,  if  a 
designing  person  were,  by  false  representations,  to  induce  a  poor 
ignorant  man  to  sign  a  cognovit,  or  execute  a  warrant  of  attorney, 
the  Court  would  relieve  him.  So,  if  a  warrant  of  attorney  were 
given  to  secure  usurious  interest.  So,  if  a  judgment  were  signed 
contrary  to  good  faith.  So,  if  a  plaintiff  vexatiously  bring  two 
actions  for  the  same  cause,  the  Court  will  force  him  to  elect  between 
them.  In  these  cases,  and  such  as  these,  the  Courts  interfere,  in 
order  to  prevent  their  rules  and  their  authority,  created,  as  both  are, 
for  the  advancement  of  justice,  from  being  per\^erted  and  abused, 
so  as  to  produce  injustice  and  oppression.  And  it  is  plain  that  the 
administration  of  the  laws  would  be  in  danger  of  falling  into  dis- 
repute, were  it  not  for  this  salutary  exercise  of  their  jurisdiction. 
Thirdly.  —  The  third  class  of  cases  in  which  the  Courts  exercise 
their  summary  jurisdiction,  is,  where  it  is  necessary  so  to  do,  in 
order  to  prevent  their  own  rules  from  producing  hardship.  Thus, 
where  a  defendant,  through  some  accident,  has  not  delivered  his 
plea  within  the  proper  time,  and  judgment  by  default  is  signed 
against  him,  this,  though  illiberal,  when  done  so  hastily  as  to 
amount  to  what  is  called  "snapping  a  judgment,"  is  nevertheless 
regular,  because  the  rules  of  the  Court  give  the  plaintiff  a  right  to  do 
it.     However,  as  it  would  be  an  extremely  hard  thing  if  he  were  to 


366  ELEMENTS  OF  PROCEDURE 

be  shut  out  of  a  good  defense  by  a  slight  mistake  on  the  part  of 
his  attorney,  the  Court,  to  prevent  this  hardship,  will  interpose  its 
summary  jurisdiction  in  his  fa\our,  and  will  set  aside  the  judgment 
upon  proper  terms.  In  a  word,  whenever  the  suitor  can  point  out 
some  great  hardship  likely  to  arise  from  a  strict  observance  of  the 
rules  by  which  the  practice  of  the  Court  is  governed,  there  he  may 
apply  for  relief,  which,  ordinarily,  will  be  granted;  unless,  indeed, 
he  be  wilfully  late  in  making  application,  or,  unless  the  grant  of 
relief  to  him,  would  impose  hardship  on  the  opposite  party.  But 
this  relief  is  granted  as  a  favor,  not  as  a  right,  and  the  Court 
will,  in  bestowing  it,  impose  any  terms  it  thinks  proper.  Thus,  it 
almost  invariably  imposes  the  payment  of  any  costs  which  the  other 
party  may  have  incurred,  and  frequently,  as  for  instance,  in  the 
case  of  setting  aside  a  regular  judgment,  insists  upon  an  affida\'it  of 
merits;  and  this  is  very  right,  for  how  ridiculous  would  it  be  to 
relieve  a  defendant  from  a  judgment  when  he  has  no  meritorious 
defence  to  the  action,  but  is  only  anxious  to  postpone  the  payment 
of  a  fair  debt,  and  set  up  vexatious  quibbling  objections  to  a  just 
demand. 

Under  this  head  are  also  to  be  ranked  applications  for  further  time 
to  plead,  orders  for  which  are  all  considered  in  the  light  of  relaxa- 
tions of  the  strict  practice  of  the  Court,  and  so  likewise  are  the 
applications  so  frequently  made  for  leave  to  amend. 

Fourthly.  — The  Courts  exercise  their  summary  jurisdiction  for 
the  purpose  of  preventing  misconduct  in  their  own  officers  and  per- 
sons immediately  under  their  control.  Thus,  as  attorneys  are  officers 
of  the  Courts,  supposed  to  be  always  in  attendance  there,  and 
invested  as  such  with  certain  privileges  and  immunities,  the  Courts 
think  themselves  bound  to  enforce  the  strictest  observance  of  good 
faith  and  propriety  on  their  part,  and  will  always  listen  to  com- 
plaints founded  upon  their  conduct  as  attorneys.  I  say  as  attorneys, 
for  the  Courts  do  not  attempt  to  exercise  control  over  their  con- 
duct in  their  own  private  affairs,  which  ha\e  nothing  to  do  with 
their  professional  character. 

Blackstone,  Commentaries,  III,  279. 

The  next  step  for  carrying  on  the  suit,  after  suing  out  the  original, 
is  called  the  process ;  being  the  means  of  compelling  the  defendant  to 
appear  in  court.  This  is  sometimes  called  original  process,  being 
founded  upon  the  original  writ;  and  also  to  distinguish  it  from 
mesne  or  intermediate  process  which  issues,  pending  the  suit,  upon 


AT  LAW  367 

some  collateral  interlocutory  matter;  as  to  summon  juries,  wit- 
nesses, and  the  like.  Mesne  process  is  also  sometimes  put  in  C(jn- 
tradistinction  to  final  process,  or  process  of  execution;  and  then  it 
signifies  all  such  process  as  intervenes  between  the  beginning  and 
end  of  a  suit. 

But  process,  as  we  are  now  to  consider  it,  is  the  method  taken 
by  the  law  to  compel  a  compliance  with  the  original  writ,  of  which 
the  primary  step  is  by  giving  the  party  notice  to  obey  it.  This 
notice  is  given  upon  all  real  prcEcipes,  and  also  upon  all  personal 
writs  for  injuries  not  against  the  peace,  by  summons,  which  is  a 
warning  to  appear  in  court  at  the  return  of  the  original  writ,  gi^'cn 
to  the  defendant  by  two  of  the  sheriff's  messengers,  called  sum- 
moners,  either  in  person  or  left  at  his  house  or  land  in  like  manner 
as  in  the  civil  law  the  first  process  is  by  personal  citation,  in  jus 
vocando.  This  warning  on  the  land  is  given,  in  real  actions,  by 
erecting  a  white  stick  or  wand  on  the  defendant's  ground,  (which 
stick  or  wand  among  the  northern  nations  is  called  the  bacillus  nun- 
ciatorius;)  and  by  statute  31  Eliz.  c.  3.,  the  notice  must  also  be 
proclaimed  on  some  Sunday  before  the  door  of  the  parish  church. 

If  the  defendant  disobeys  this  verbal  monition,  the  next  process 
is  by  writ  of  attachment  or  pone,  so  called  from  the  words  of  the 
writ,  ^'pone  per  vadium  et  salvos  plegios,  put  by  gage  and  safe 
pledges,  A.  B.  the  defendant,  etc."  This  is  a  writ  not  issuing  out 
of  chancery,  but  out  of  the  court  of  common  pleas,  being  grounded 
on  the  non-appearance  of  the  defendant  at  the  return  of  the  original 
writ ;  and  thereby  the  sheriff  is  commanded  to  attach  him,  by  taking 
gage,  that  is,  certain  of  his  goods,  which  he  shall  forfeit  if  he  doth 
not  appear ;  or  by  making  him  find  safe  pledges  or  sureties  who  shall 
be  amerced  in  case  of  his  non-appearance.  This  is  also  the  first 
and  immediate  process,  without  any  previous  summons  upon  actions 
of  trespass  vi  et  armis,  or  for  other  injuries,  which  though  not 
forcible,  are  yet  trespasses  against  the  peace,  as  deceit  and  con- 
spiracy; where  the  violence  of  the  wrong  requires  a  more  speedy 
remedy,  and  therefore  the  original  writ  commands  the  defendant 
to  be  at  once  attached,  without  any  precedent  warning. 

If,  after  attachment,  the  defendant  neglects  to  appear,  he  not 
only  forfeits  this  security,  but  is  moreover  to  be  further  compelled 
by  writ  of  distringas  or  distress  infinite;  which  is  a  subsequent 
process  issuing  from  the  court  of  common  pleas,  commanding  the 
sheriff  to  distrain  the  defendant  from  time  to  time,  and  continually 
afterwards  by  taking  his  goods  and  the  profits  of  his  lands,  which 


368  ELEMENTS  OF  PROCEDURE 

are  called  issues,  and  which  by  the  common  law  he  forfeits  to  the 
king  if  he  doth  not  appear.  But  now  the  issues  may  be  sold,  if  the 
court  shall  so  direct,  in  order  to  defray  the  reasonable  costs  of  the 
plaintiff.  In  like  manner,  by  the  civil  law,  if  the  defendant  absconds, 
so  that  the  citation  is  of  no  effect,  "mittitur  adversarius  in  posses- 
sionem honorum  ejus.'' 

And  here,  by  the  common  as  well  as  the  civil  law,  the  process 
ended  in  case  of  injuries  without  force;  the  defendant,  if  he  had 
any  substance,  being  gradually  stripped  of  it  all  by  repeated  dis- 
tresses, till  he  rendered  obedience  to  the  king's  writ;  and,  if  he 
had  no  substance,  the  law  held  him  incapable  of  making  satisfaction, 
and  therefore  looked  upon  all  further  process  as  nugatory.  And 
besides,  upon  feodal  principles,  the  person  of  a  feudatory  was  not 
liable  to  be  attached  for  injuries  merely  civil,  lest  thereby  his  lord 
should  be  deprived  of  his  personal  services.  But,  in  case  of  injury 
accompanied  with  force,  the  law,  to  punish  the  breach  of  the  peace, 
and  prevent  its  disturbance  for  the  future,  provided  also  a  process 
against  the  defendant's  person  in  case  he  neglected  to  appear  upon 
the  former  process  of  attachment,  or  had  no  substance  whereby  to 
be  attached;  subjecting  his  body  to  imprisonment  by  the  writ  of 
capias  ad  respondendum.  But  this  immunity  of  the  defendant's 
person,  in  case  of  peaceable  though  fraudulent  injuries,  producing 
great  contempt  of  the  law  in  indigent  wrong-doers,  a  capias  was  also 
allowed  to  arrest  the  person,  in  actions  of  account,  though  no  breach 
of  the  peace  be  suggested,  by  the  statutes  of  Marlbridge,  52  Hen. 
III.  c.  23,  and  Westm.  2,  13  Edw.  I.  c.  11,.  in  actions  of  debt  and 
detinue,  by  statute  25  Edw.  III.  c.  17,  and  in  all  actions  on  the 
case,  by  statute  19  Hen,  VII.  c.  9.  Before  which  last  statute  a 
practice  had  been  introduced  of  commencing  the  suit  by  bringing 
an  original  \\rit  of  trespass  quare  clausum  fregit,  for  breaking  the 
plaintiff's  close  vi  et  armis;  which  by  the  old  common  law  sub- 
jected the  defendant's  person  to  be  arrested  by  writ  of  capias;  and 
then,  afterwards,  by  connivance  of  the  court,  the  plaintiff  might 
proceed  to  prosecute  for  any  other  less  forcible  injury.  This  prac- 
tice (through  custom  rather  than  necessity,  and  for  saving  some 
trouble  and  expense,  in  suing  out  a  special  original  adapted  to  the 
particular  injury)  still  continues  in  almost  all  cases,  except  in  actions 
of  debt;  though  now,  by  virtue  of  the  statutes  above  cited  and 
others,  a  capias  might  be  had  upon  almost  every  species  of  complaint. 

If  therefore  the  defendant,  being  summoned  or  attached,  makes 
default,  and  neglects  to  appear;    or  if  the  sheriff  returns  a  nihil, 


AT  LAW  369 

or  that  the  defendant  hath  nothing  whereby  he  may  be  summoned, 
attached,  or  distrained;  the  capias  now  usually  issues:  being  a 
writ  commanding  the  sheriff  to  take  the  body  of  the  defendant  if 
he  may  be  found  in  his  bailiwick  or  county,  and  him  safely  to 
keep,  so  that  he  may  have  him  in  court  on  the  day  of  the  return, 
to  answer  to  the  plaintiff  of  a  plea  of  debt  or  trespass,  etc.,  as  the 
case  may  be.  This  writ,  and  all  others  subsequent  to  the  original 
writ,  not  issuing  out  of  chancery,  but  from  the  court  into  which 
the  original  was  returnable,  and  being  grounded  on  what  has  passed 
in  that  court  in  consequence  of  the  sheriff's  return,  are  called 
judicial,  not  original  writs;  they  issue  under  the  private  seal  of 
that  court,  and  not  under  the  great  seal  of  England;  and  are 
tested,  not  in  the  king's  name,  but  in  that  of  the  chief  (or,  if 
there  be  no  chief,  of  the  senior)  justice  only.  And  these  several 
writs,  being  grounded  on  the  sheriff's  return,  must  respectively 
bear  date  the  same  day  on  which  the  writ  immediately  preceding 
was  returnable.  .  .  . 

But  where  a  defendant  absconds,  and  the  plaintiff  would  pro- 
ceed to  an  outlawry  against  him,  an  original  writ  must  then  be 
sued  out  regularly,  and  after  that  a  capias.  And  if  the  sheriff  can 
not  find  the  defendant  upon  the  first  writ  of  capias,  and  return  a 
non  est  inventus,  there  issues  out  an  alias  writ,  and  after  that  a 
pluries,  to  the  same  effect  as  the  former;  only  after  these  words, 
"we  command  you,"  this  clause  is  inserted,  "as  we  have  formerly," 
or  "as  we  have  often  commanded  you":  "sicnt  alias,'^  or  "sicut 
pluries,  praecepimits."  And,  if  a  non  est  inventus  is  returned  upon 
all  of  them,  then  a  writ  of  exigent  or  exigi  facias  may  be  sued  out, 
which  requires  the  sheriff  to  cause  the  defendant  to  be  proclaimed, 
required,  or  exacted,  in  five  county  courts  successively,  to  render 
himself;  and  if  he  does,  then  to  take  him  as  in  a  capias;  but  if  he 
does  not  appear,  and  is  returned  qiiinto  exactus,  he  shall  then  be 
outlawed  by  the  coroners  of  the  county.  Also  by  statute  6  Hen. 
VIII.  c.  4,  and  31  EHz.  c.  3,  whether  the  defendant  dwells  within 
the  same  or  another  county  than  that  wherein  the  exigent  is  sued 
out,  a  writ  of  proclamation  shall  issue  out  at  the  same  time  with 
the  exigent,  commanding  the  sheriff  of  the  county,  wherein  the 
defendant  dwells,  to  make  three  proclamations  thereof  in  places  the 
miost  notorious,  and  most  likely  to  come  to  his  knowledge,  a  month 
before  the  outlawry  shall  take  place.  Such  outlawry  is  putting  a 
man  out  of  the  protection  of  the  law,  so  that  he  is  incapable  to 
bring  an  action  for  redress  of  injuries;  and  it  is  also  attended  with 


370  ELEMENTS  OF  PROCEDURE 

a  forfeiture  of  all  one's  goods  and  chattels  to  the  king.^  And  there- 
fore, till  some  time  after  the  conquest,  no  man  could  be  outlawed 
but  for  felony ;  but  in  Bracton's  time,  and  somewhat  earlier,  process 
of  outlawry  was  ordained  to  lie  in  all  actions  for  trespasses  vi  et 
armis.  And  since  his  days,  by  a  variety  of  statutes,  (the  same 
which  allow  the  writ  of  capias  before  mentioned),  process  of 
outla^vry  doth  lie  in  divers  actions  that  are  merely  civil ;  provided 
they  be  commenced  by  original  and  not  by  bill.  If  after  outlawry 
the  defendant  appears  publicly,  he  may  be  arrested  by  a  writ  of 
capias  utlagatum,  and  committed  till  the  outlawry  be  reversed. 
Which  reversal  may  be  had  by  the  defendant's  appearing  personally 
in  court  or  by  attorney  (though  in  the  king's  bench  he  could  not 
appear  by  attorney,  till  permitted  by  statute  4  &  5  W.  and  M.  c. 
18) ;  and  any  plausible  cause,  however  slight,  will  in  general  be 
sufficient  to  reverse  it,  it  being  considered  only  as  a  process  to 
compel  an  appearance.  But  then  the  defendant  must  pay  full 
costs,  and  put  the  plaintiff  in  the  same  condition  as  if  he  had  appeared 
before  the  writ  of  exigi  facias  was  awarded. 

Extracts  from  Smith,  Elementary  View  of  the  Proceedings 
IN  AN  Action  at  Law. 

We  have  now  arrived  at  the  commencement  of  the  action  itself, 
the  first  step  in  which  is  the  process. 

Process  is  the  means  employed  for  the  purpose  of  oljliging  the 
defendant  to  appear  in  court,  to  answer  to  the  action.  It  also 
serves  the  purpose  of  giving  him  timely  notice  of  the  nature  of  the 
claim  against  him,  so  that  he  may,  if  he  please,  satisfy  it,  and  thus 
save  himself  from  the  necessity  of  answering  the  action  at  all.  And 
for  this  purpose,  the  process  always  informs  him  who  the  plaintiff 
is,  and  what  is  the  nature  of  the  intended  action;  and,  where  the 
cause  of  action  is  a  debt,  the  process  must,  according  to  a  very 
salutary  rule  of  Hilary,  1832,  have  an  indorsement,  stating  the 
precise  amount  of  the  plaintiff's  demand. 

The  process  of  the  Superior  Courts  of  law  consists  of  writs. 
Writs  are  letters  missive  from  the  sovereign,  commanding  the  doing 
or  forbearing  of  some  act.  Thus,  a  writ  of  mandamus  issues,  as 
its  name  imports,  to  command  a  performance,  a  writ  of  prohibition, 

^  For  other  examples  of  this  idea  of  punishing  non-appearance,  see  Salic  Law, 
title  50;  Laws  of  Athelstan,  c.  20;  Laws  of  Cnut,  c.  25;  Gains,  IV,  §  46.  See 
also  Pollock  and  Maitland,  History  of  English  Law,  II,  Chap.  IX,  §  3. 


AT  LAW  371 

as  its  name  imports,  to  command  the  forbearance  of  some  act. 
Writs  arc  always  directed  to  the  person  on  whom  the  command 
is  imposed;  they  are  always  witnessed  or  tested,  as  it  is  called,  in 
the  name  of  some  person  appointed  for  that  purpose  of  law,  and 
they  are  always  returnable  in  some  court  or  other,  that  is,  there 
is  always  some  person  who  is,  by  law,  compellable  to  bring  them 
into  that  court,  and  certify  to  it  what  has  been  done  in  pursuance 
of  them.  These  observations  apply  to  all  writs  whatever.  A  return 
of  a  writ  is  the  sherifif's  answer  or  certificate  to  the  court,  touching 
that  which  he  is  commanded  to  do  by  any  writ  directed  to  him. 

The  writ  of  summons  is  a  judicial  writ,  i.e.,  a  writ  issuing  out 
of  the  Court  in  which  the  defendant  is  to  be  sued ;  and  as  it  is  now 
the  commencement  of  the  action  it  cannot  be  issued  before  the  cause 
of  action  is  complete,  it  is  directed  to  the  defendant,  whom  it  com- 
mands that,  within  eight  days  after  the  service  of  the  writ  on  him 
inclusive  of  the  day  of  such  service,  he  do  cause  an  appearance 
to  be  entered  for  him  in  the  Court  in  which  the  action  is  brought, 
in  an  action  on  promises,  or  debt,  or  as  the  case  may  be,  at  the 
suit  of  the  plaintiff,  and  requires  the  defendant  to  take  notice,  that 
in  default  of  his  so  doing,  the  plaintiff  may  cause  an  appearance  to 
be  entered  for  him,  and  proceed  to  judgment  and  execution. 

An  alias  Writ  of  Summons,  and  a  pluries,  continue  the  first  writ, 
and  differ  only  from  it,  the  former,  by  mentioning  that  it  com- 
mands the  defendant,  "as  before  he  was  commanded,"  and  the 
latter  by  its  mentioning  that  it  commands  him,  "as  often  he  was 
commanded."  Each  has  a  memorandum  and  indorsements,  similar 
to  those  on  the  first  Writ  of  Summons. 

As  soon  as  the  defendant  has  appeared,  the  pleadings  commence. 

These  are  the  altercations  which  take  place  between  the  plain- 
tiff and  defendant,  for  the  purpose  of  ascertaining  the  nature  of 
the  complaint,  the  grounds  of  defence,  and  the  points  in  controversy 
between  the  parties.  These  pleadings  were,  in  the  early  ages  of 
the  common  law,  delivered  viva  voce  by  the  counsel.  The  writ  by 
which  the  action  was  commenced  used  to  be  brought  into  Court 
with  the  sheriff's  return  upon  it,  and  the  plaintiff's  counsel,  after 
it  had  been  read,  proceeded  to  expand  the  charge  contained  in  it 
into  a  connected  story,  by  adding  time,  place,  and  other  circum- 
stances. Thus,  if  the  writ  mentioned  the  cause  of  action  to  be 
trespass,  the  plaintiff's  counsel  stated,  where,  when,  and  how,  the 


372  ELEMENTS  OF  PROCEDURE 

trespass  was  committed,  and  what  special  damage  had  resulted 
from  it.  This  statement  was  called  the  count,  from  the  French 
conte,  a  tale  or  story.  The  defendant's  counsel,  on  his  part,  stated 
the  defence  with  similar  precision,  and  this  was  called  the  plea. 
The  plaintiff's  counsel  replied:  the  defendant's,  if  necessary, 
rejoined;  and  so  on,  until  they  had  come  to  a  contradiction  either 
in  law  or  fact.  If  either  conceived  that  the  last  pleading  on  the 
opposite  side  was  untrue  in  fact,  he  positi\ely  denied  it,  and  was 
then  said  "to  take  issue  upon  it."  If  he  conceixed  it  to  be  bad  in 
law,  he  demurred,  so  called  from  the  French  dcvieurer,  to  abide, 
because  he  abided  by  the  determination  of  the  point  of  law,  con- 
ceixing  that  the  insufficiency  of  his  opponent's  pleading,  furnished 
him  with  a  sufficient  answer  to  his  case.  Thus  was  an  issue  pro- 
duced either  of  fact  or  law.  If  of  law,  it  was  decided  by  the  Court ; 
if  of  fact,  tried,  in  most  cases,  by  a  jury. 

While  the  proceedings  were  going  on,  the  officer  of  the  Court 
sat  at  the  feet  of  the  judges,  entering  them  on  a  parchment  roll  of 
record.  This  record  bore  different  names  at  different  times.  When 
the  pleadings  only  were  in  process  of  being  entered,  it  was  called 
"the  plea  roll" ;  when  the  issue  had  been  joined  and  entered  on  it,  it 
was  called  "the  issue  roll";  and  when  the  judgment  had  been 
recorded  on  it,  it  was  called  "the  judgment  roll";  being  all  along 
the  same  piece  of  parchment,  but  bearing  different  names  at  different 
periods  of  the  suit. 

When  business  increased,  and  causes  became  complicated,  the 
system  of  viva  voce  pleading  was  found  inconvenient,  and,  instead 
of  pronouncing  the  pleadings  aloud,  they  were  drawn  on  paper, 
and  filed  in  the  office  of  the  Court,  or  delivered  between  the  parties. 
The  judges  heard  ncAhing  about  them  until  issue  or  demurrer, 
and,  thus,  considerable  time  was  saved.  As  to  the  roll,  that  was  at 
first  transcribed  from  the  written  pleadings  by  the  officers,  as 
anciently  from  the  viva  voce  ones.  Afterwards,  the  officers,  find- 
ing themselves  pressed  for  time,  requested  the  attorneys  to  trans- 
cribe it  themselves;  and  bring  it  to  the  office;  and  the  attorneys, 
finding  this  irksome,  began  to  omit  carrying  it  in  at  all,  except  in 
cases  where  it  was  wanted  for  some  particular  purpose;  so  that, 
in  most  cases,  the  roll  existed  only  in  contemplation  of  law;  and 
now,  does  not  exist  at  all  till  a  late  period  of  the  suit. 

Although  the  pleadings  are  now  transcribed  on  paper,  they  are 
governed  by  the  very  same  rules  which  regulated  them  when  pro- 
nounced viva  voce.     There  is  scarce  any  branch  of  the  law  which 


AT  LAW  373 

has  undergone  so  few  changes  as  the  theory  of  pleading.  Comyn's 
Digest  is  as  useful  to  a  pleader  today  as  it  was  when  it  was  written ; 
and  it  is  curious  to  remark,  that,  while  the  new  rules  have  altered 
the  ancient  practice  in  most  other  cases  to  which  they  have  been 
applied,  their  effect  on  pleading  has  been  to  bring  it  back  to  its 
old  bounds,  and  to  destroy  innovations  which  had  crept  in  on  the 
ancient  system,  and  reject  that  which  was  not  essential  in  the  old 
forms. 

The  first  step  in  the  pleadings  is  the  declaration.  The  declara- 
tion in  the  words  of  Lord  Coke  "is  an  exposition  of  the  writ,  and 
addeth  time,  place,  and  other  circumstances  that  the  same  may  be 
triable."  The  general  requisites  of  it  are:  —  1.  That  it  should  cor- 
respond with  the  writ;  for  example,  if  it  appear  from  the  declara- 
tion that  the  cause  of  action  accrued  after  the  writ  was  issued,  the 
declaration  will  be  bad.  2.  It  must  state  all  facts  necessary  in  point 
of  law  to  support  the  action  and  no  more.  3.  These  facts  must  be 
set  forth  with  certainty  and  truth. 

The  plaintifif  is  not  confined  to  the  statement  of  one  cause  of 
action  only,  for  the  declaration  may  consist  of  several  counts,  and 
each  of  those  counts  may  state  a  different  cause  of  action.  Thus, 
the  first  count  of  a  declaration  in  assumpsit,  may  be  on  a  bill  of 
exchange,  the  second  on  a  promissory  note,  the  third  for  goods  sold 
and  delivered,  and  so  on.  But  there  is  this  limitation,  namely, 
that  all  the  counts  must  belong  to  the  same  form  of  action ;  thus,  a 
declaration  must  not  contain  one  count  in  debt,  and  another  in 
assumpsit,  one  count  in  trespass,  and  another  in  case. 

There  is,  however,  one  exception  to  this  rule,  namely,  that  debt 
and  detinue  may  be  joined  together  in  the  same  declaration. 

It  had  been  decided  in  several  cases,  that  any  variance  between 
a  material  part  of  the  statement  of  the  cause  of  action  in  the  declara- 
tion and  the  evidence  adduced  at  the  trial  in  support  of  it,  was 
fatal,  and  a  ground  of  nonsuit.  The  consequence  of  this  was,  that 
plaintiffs  were  continually  nonsuited,  in  the  most  vexatious  manner, 
on  account  of  slight  variances  between  the  declaration  and  the 
evidence;  and  to  such  an  extreme  was  this  carried,  that  there  is 
one  case  of  Walters  v.  Mace,  2  B.  &  A.  756,  in  which  the  plaintilT 
was  nonsuited,  because,  in  copying  Lord  Waterpark's  title  in  the 
declaration  the  clerk,  instead  of  writing  Baron  Waterpark  of 
Waterpark,  had  written  Baron  Waterpark  of  Waterfork.  In  order 
to  prevent  the  fatal  mischief  often  occasioned  by  these  trifling  vari- 
ances, pleaders  used  to  insert  a  great  number  of  counts  in    the 


374  ELEMENTS  OF  PROCEDURE 

declaration,  stating  the  cause  of  action,  in  different  ways,  in  hopes 
that,  if  the  evidence  varied  from  some,  it  might  not  from  others; 
and  that  one  count,  at  least,  might  be  found  free  from  objection  on 
the  score  of  variance. 

The  plea  is  the  defendant's  answer  to  the  declaration  by  matter 
of  fact,  and  is  either  a  plea  in  abatement  or  a  plea  in  bar.  A  plea 
in  abatement  is  one  which  shews  some  ground  for  abating  or  quash- 
ing the  original  writ  in  a  real  or  mixed  action,  or  the  declaration  in 
a  personal  action,  and  makes  prayer  to  that  effect ;  it  therefore  does 
not  contain  an  answer  to  the  cause  of  action,  but  shews  that  the 
plaintiff  has  committed  some  informality,  and  points  out  how 
he  ought  to  have  proceeded,  or,  in  technical  language,  "gives  him 
a  better  writ  or  declaration."  Pleas  in  abatement  are  not  usual; 
they  are  discouraged  by  the  courts  as  tending  to  throw  technical 
difficulties  in  the  plaintiff's  way.  They  must,  by  stat.  4  Anne  c. 
16,  always  be  verifiied  by  affidavit,  which  must  be  delivered  with 
the  plea,  unless,  as  in  Johnson  v.  Popplewell,  2  Tyrwh.  717,  the  dis- 
tance of  the  intended  deponent's  residence  from  town  induces  a 
judge  to  grant  further  time.  They  cannot  be  amended,  and  the 
power  of  pleading  several  matters  does  not  extend  to  them. 

A  plea  in  bar,  which  is  the  sort  of  plea  most  usually  resorted  to, 
is  a  peremptory  and  substantial  answer  to  the  action.  Such  a  plea 
is  either  a  traverse  or  a  plea  in  confession  and  avoidance ;  there  is, 
indeed,  a  third  sort  of  plea,  entitled  "A  plea  in  estoppel"  but  this  is 
of  rare  practical  occurrence.  A  plea,  when  it  denies  some  essential 
part  of  the  declaration,  is  said  to  be  a  traverse.  It  is  "in  confession 
and  avoidance"  when  it  admits  the  averments  of  fact  in  the  declara- 
tion to  be  true,  but  shews  some  new  m^itter  not  mentioned  in  the 
declaration,  which  destroys  the  plaintiff's  right  of  action.  Thus, 
in  an  action  against  the  maker  of  a  note,  if  the  defendant  plead  "he 
did  not  make  the  note,"  that  is  a  traverse.  But  if  he  plead  "that 
he  did  make  it,  but  for  an  illegal  consideration  of  which  the  plain- 
tiff was  aware,"  that  is  a  plea  in  confession  and  avoidance.  A 
traverse  always  concludes  to  the  country,  that  is,  in  these  words, 
"and  of  this  the  said  defendant  puts  himself  upon  the  country,  &c." 
A  plea  in  confession  and  avoidance  always  concludes  with  a  veri- 
fication, i.e.,  in  these  words,  "and  this  the  said  defendant  is  ready 
to  verify,  &c." 

At  common  law,  the  defendant  was  allowed  but  one  plea  to 
each  count  of  the  declaration;   and,   for   this   restriction,    a   very 


AT  LAW  375 

unsatisfactory  reason  was  assigned,  namely,  that,  as  one  defence  is 
sufficient  to  rebut  the  action,  the  defendant  could  have  no  occasion 
to  set  up  more.  But  it  is  obvious  that  a  defendant  may  have  several 
good  defenses  against  the  same  action,  and  yet  may  reasonably 
wish  to  plead  them  all,  in  order  that,  if  by  some  accident,  his  evi- 
dence of  one  of  them  should  fail,  he  may  rely  upon  another.  Accord- 
ingly, by  Stat.  4  &  5  Anne,  c.  16,  the  defendant  is  at  liberty  to 
plead  several  pleas  by  leave  of  the  court. 

The  subsequent  steps  in  pleading  are  the  replication,  containing 
the  plaintiff's  answer  to  the  plea;  the  rejoinder,  the  defendant's 
answer  to  the  replication;  the  surrejoinder,  the  rebutter,  and  the 
surrebutter,  and  so  on.  The  pleadings  seldom  reach  to  surre- 
butter, but  they  sometimes  do,  and  there  is  nothing  to  prevent  their 
going  beyond  it,  but  the  steps  beyond  surrebutter  have  no  dis- 
tinctive names.  At  each  of  these  steps  the  party  replying,  rejoining 
or  framing  any  other  pleading,  must  either  traverse  or  confess  and 
avoid,  that  is,  must  either  deny  some  material  part  of  the  adversary's 
last  pleading,  or  must  admit  such  last  pleading  to  be  true,  but  allege 
some  new  matter,  altering  the  legal  effect  of  it,  and  showing  that  he 
himself  is,  nevertheless,  entitled  to  judgment.  If  he  traverse  he 
concludes  to  the  country,  that  is,  if  plaintiff,  he  concludes  by  saying, 
"and  of  this  the  said  plaintifif  prays  may  be  inquired  of  by  the 
country,  &c.";  if  defendant,  by  saying,  "and  of  this  the  said 
defendant  puts  himself  upon  the  country,  &c."  If  he  confess  and 
avoid,  he  concludes  with  a  verification,  that  is,  by  saying,  "and  this 
he  is  ready  to  verify,  &c."  Thus  the  pleadings  go  on,  step  by  step, 
till  at  last  the  parties  come,  as  they  necessarily  must,  to  a  direct 
contradiction,  which,  upon  a  fact,  is  called  "an  issue,"  if  upon  a 
point  of  law,  "a  demurrer." 

It  has  been  already  said,  that  at  each  step  in  the  pleadings  either 
party  may,  if  he  think  fit,  instead  of  pleading,  replying,  rejoining, 
etc.,  demur  to  the  last  pleading  of  his  adversary,  that  is,  he  may 
say  it  is  not  sufficient  in  law.  Thus  if  A  sue  B  as  the  maker  of  a 
promissory  note,  or  as  the  acceptor  of  a  bill  of  exchange,  of  which 
he,  A,  is  the  indorsee,  and  B  pleads  that  the  payee  gave  him  no 
consideration  for  it,  instead  of  replying  to  this  plea,  A  might  demur, 
because,  even  admitting  it  to  be  true,  it  would  be  no  defense  against 
an  indorsee,  who  must  be  presumed  to  have  given  value  until  the 
contrary  is  shown,  because  promissory  notes  and  bills  of  exchange 


376  ELEMENTS  OF  PROCEDURE 

are  an  exception  to  the  rule  which  prevails  in  the  case  of  other 
simple  contracts;  there  the  law  presumes  there  was  no  consideration 
till  it  appear,  and  therefore  the  plaintiff  must  aver  in  his  declara- 
tion on  a  simple  contract  that  "it  was  made  on  a  good  consideration; 
but  in  the  case  of  contracts  on  hills  or  notes,  a  consideration  is  pre- 
sumed till  the  contrary  appear.  If  the  opposite  party  thinks  the 
law  is  in  his  fa\or,  he  joins  in  demurrer,  and  then  the  point  is  argued 
and  decided  by  the  Court  hi  banco.  If  he  finds  that  he  has  made 
a  mistake,  he  usually  amends,  which  a  judge  will  allow  him  to  do 
on  payment  of  the  costs  occasioned  to  the  opposite  party  by  his 
mispleading. 

A  demurrer  is  either  general  or  special.  A  general  demurrer  lies 
when  the  objection  is  a  substantial  one,  as  in  the  case  just  put  by 
way  of  example.  A  special  demurrer  must  be  used  where  the 
objection  is  merely  technical  and  formal,  as,  for  instance,  if  the 
defendant  were,  as  in  the  case  of  Margetts  v.  Bays,  4  A.  &  E.  489, 
to  plead  that  the  supposed  debt  if  any,  did  not  accrue  within  six 
years,  that  would,  according  to  that  case,  be  bad  on  special  demurrer, 
as  neither  traversing  the  declaration  nor  confessing  and  avoiding 
it;  for  it  is  one  of  the  fundamental  rules  of  pleading,  that  after  the 
declaration  the  parties  must  at  each  stage  demur,  or  plead  by  way 
of  traverse,  or  by  way  of  confession  and  avoidance;  but  the  statute 
27  Eliz.  c.  5,  requires  that  the  objection,  when  a  technical  and  formal 
one,  should  be  pointed  out  specially  at  the  conclusion  of  the  de- 
murrer. 

It  frequently  happens  that  the  defendant,  in  his  plea,  takes  issue 
or  demurs,  and  then  the  pleadings  terminate,  and  the  decision  of 
the  issue  or  demurrer  is  the  next  thing  to  be  attended  to.  It  some- 
times, however,  happens  that  the  pleadings  run  on  through  the 
steps  of  replication,  rejoinder,  and  e\en  though  more  rarely  re- 
butter and  surrebutter.  If  the  plaintiff  neglects  to  take  any  of 
those  steps  which  it  is  incumbent  on  him  to  take,  within  due  time, 
he  is  liable  to  judgment  of  non  pros.,  and  the  defendant,  in  case 
of  similar  neglect  on  his  side,  to  judgment  by  default. 

Assuming  that  the  different  steps  are  taken  in  their  due  time,  an 
issue  either  of  law  or  fact  is  ultimately  produced,  and  the  object 
of  the  pleadings  thus  accomplished.  For  the  object  of  the  whole 
system  of  pleading  is  to  bring  the  parties  to  an  issue,  to  elicit  the 
real  points  in  controversy  between  them.  If  these  are  points  of 
law,  they  are  argued  before  the  Court,  if  of  fact,  tried  by  a  jury. 


AT  LAW  377 

Frequently  it  turns  out  that  there  are  several  issues,  some  of  law 
and  some  of  fact.  Thus  one  count  or  one  plea  may  be  demurred 
to,  and  the  others  traversed.  When  this  happens,  the  demurrer 
must  be  decided  by  the  Court,  and  the  issues  of  fact  by  a  jury. 
But  when  the  defendant's  plea  goes  to  bar  the  action  if  the  plaintiff 
demur  to  it  and  the  demurrer  is  determined  in  favor  of  the  plea, 
judgment  of  nil  capiat,  it  seems,  shall  be  entered,  notwithstanding 
there  may  be  also  one  or  more  issues  in  fact,  because  on  the  whole 
it  appears  that  the  plaintiff  had  no  cause  of  action.  So  where  sev- 
eral pleas  go  to  destroy  the  action,  and  one  or  more  issues  are 
joined  on  some  of  the  pleas,  and  there  are  one  or  more  demurrers 
to  the  rest,  if  the  Court  determine  the  demurrer  in  favor  of  the 
defendant  before  the  issues  are  tried,  they  shall  not  be  tried,  and  if 
after,  it  will  make  no  difference  in  each  case,  judgment  of  nil  capiat 
shall  be  given  against  the  plaintiff.     Saund.  vol.  i,  80. 

The  mode  in  which  these  decisions  are  obtained  is  therefore  the 
next  matter  to  be  considered. 

Before,  however,  stating  the  mode  in  which  an  issue  is  decided, 
it  appears  right  to  touch  on  one  or  two  matters  of  very  ordinary 
occurrence,  and  which  usually  take  place  during  the  pleadings,  at 
all  events  previous  to  the  decision  of  the  issue. 

Another  application  which  may  be,  and  frequently  is,  made, 
both  by  plaintiffs  and  defendants,  is  for  the  oyer  of  a  deed,  or  in- 
spection of  some  written  instrument.  With  respect  to  oyer,  the 
rule  is,  that  whenever  either  party  in  his  pleadings  states  a  deed 
which  operates  at  common  law  or  letters  of  administration,  he  is 
bound  to  make  profert,  as  it  is  called,  that  is,  he  is  obliged  to  say 
that  he  brings  the  instrument  into  court,  being  a  translation  of  the 
words  profert  in  curiam,  used  by  the  ancient  pleaders.  The  other 
party  may  then,  if  he  please,  crave  oyer  of  its  contents,  which  the 
party  making  profert  is  obliged  to  give  him,  and  he  is  entitled  to  as 
many  days  for  taking  his  next  step  in  pleading  after  he  has  had  the 
oyer,  as  he  was  before  he  demanded  it. 

The  practice  of  ipaking  profert  and  demanding  oyer  is  of  great 
antiquity,  and  forms  part  of  the  old  system  of  viva  voce  pleading. 
Under  that  system,  the  party  who  relied  on  a  deed  used  to  produce 
it  in  the  open  court;  the  opposite  party  might  pray  to  hear  it  read, 
which  he  did  by  using  the  Norman  word  oyer  "to  hear"  —  a  corrup- 
tion of  which  into  O  yes  is  still  used  by  a  crier  making  proclamation. 
On  oyer  being  craved,  the  deed  was  read  aloud  by  the  officer  of  the 


378  ELEMENTS  OF  PROCEDURE 

court,  a  practice  for  which  that  of  the  attorney's  demanding  it  from 
one  another  was  afterwards  substituted. 

The  defendant,  when  he  has  craved  and  obtained  oyer  of  a  deed, 
ought  properly  to  set  it  out  at  full  length  at  the  head  of  his  plea, 
in  order  that  it  may  appear  upon  record,  and  be  referred  to  if 
necessary. 

As  to  inspection.  It  sometimes  happens  that  one  of  the  parties 
is  in  fairness  entitled  to  inspect  some  document,  the  contents  of 
which  will  be  of  service  to  him  in  conducting  his  case,  but  which 
not  being  pleaded,  or  not  operating  at  common  law,  there  is  no 
projert  of  it,  and  consequently  he  cannot  demand  oyer.  Under 
such  circumstances  his  course  is  to  apply,  by  way  of  motion,  that 
he  may  be  permitted  to  inspect  the  document  in  question  which  he 
will  be  allowed  to  do,  if  it  turn  out  that  he  is  in  fairness  and  equity 
entitled  to  do  so. 

Another  ordinary  application  on  the  part  of  defendants  is,  that 
several  actions  may  be  consolidated,  they  undertaking  to  abide  by 
the  event  of  one  of  them.  This  application  is  most  frequently  made 
in  actions  against  underwriters  upon  a  policy  of  insurance,  where, 
as  the  question  is  the  same  against  each  underwriter,  since  if  one 
be  liable  to  the  loss  the  rest  of  course  are  so,  it  is  usual  for  the 
defendants  to  move  for  what  is  called  the  consolidation  rule,  a 
rule  which  was  invented  by  Lord  Mansfield,  and  the  effect  of  which 
is  to  bind  the  defendants  in  all  the  actions  by  the  verdict  in  one. 

In  the  instance  given  it  is  necessary  that  several  actions  should 
be  brought,  the  defendants  being  separate  and  several,  and  generally 
the  plaintiff's  consent  to  the  rule  must  be  had.  But  cases  sometimes 
occur  in  which  separate  actions  are  vexatiously  commenced  against 
a  defendant,  as  where  several  causes  of  actions  are  complete  at  the 
same  time  or  nearly  so,  whereupon  the  court  will  interfere  and  con- 
solidate the  actions,  or  suspend  the  trial. 

It  sometimes  happens  that  the  plaintiff  is  resident  out  of  the 
jurisdiction  of  the  court,  in  which  case,  as  it  is  obvious  that  the 
defendant  would,  in  case  of  the  action  pro\ing  unsuccessful,  have 
no  means  of  obtaining  his  costs,  the  court  will,  upon  an  application 
made  in  proper  time,  stay  his  proceedings  until  he  give  security  for 
costs.  There  is  a  rule  of  Hilary,  1832,  sec.  98,  which  obliges  the 
defendant  to  make  this  application  before  issue  joined.  When  the 
application  is  made  in  due  time,  it  is  so  much  of  course  to  grant 


AT  LAW  379 

it  that  even  a  foreign  potentate  suing  in  our  courts  is  obliged  to  find 
security. 

The  last  of  these  occasional  applications  of  which  notice  need 
here  be  taken  is  for  the  purpose  of  changing  the  venue.  The  venue 
as  has  already  been  said,  is  the  county  mentioned  in  the  margin 
of  the  declaration,  and  it  has  been  shown  in  what  cases  it  is  local 
and  in  what  transitory;  that  it  is  local  when  the  cause  of  action 
could  not  have  taken  place  in  any  other  county,  as,  for  instance, 
in  actions  of  trespass  quare  clausum  fregit;  transitory,  where  the 
cause  of  action  might  have  happened  in  another  county,  as  in 
actions  of  trespass  for  assault  and  battery.  Now  at  common  law, 
the  rule  was,  that  in  a  transitory  action  the  plaintiff  might  lay  the 
venue  wherever  he  pleased.  But  this  was  found  to  create  so  much 
vexation,  in  consequence  of  plaintiffs  laying  venues  at  a  great  dis- 
tance from  the  defendant's  residence,  that  it  was  enacted  by  stat. 
2  Rich.  2,  c.  2,  that  the  venue  should  be  laid  in  the  county  where 
the  cause  of  action  arose. 

Anciently  there  were  a  variety  of  modes  of  trial  appropriated  by 
the  law,  as  it  once  stood,  to  various  states  of  circumstances.  Those 
which  remain  in  force  are :  — 

1.  Trial  by  inspection  is  when  the  matter  in  dispute  being  the 
object  of  sight,  the  judges  of  court,  upon  the  evidence  of  their 
senses  shall  decide  it. 

2.  By  certificate,  a  mode  confined  to  one  or  two  very  unusual 
causes,  is  where  the  evidence  of  the  person  certifying  is  the  only 
criterion  of  the  point  in  dispute.  Thus  the  certificate  under  seal 
of  the  king's  mareschal  that  A  was  absent  with  the  king  and  his 
army,  shall  be  conclusive  of  that  fact. 

3.  By  witnesses.  Without  a  jury,  when  the  judge  forms  his 
sentence  upon  the  credit  of  the  witnesses  examined,  as  when  a 
widow  brings  writ  of  dower,  and  the  plea  is,  that  the  husband  is  not 
dead.  This  being  regarded  as  a  dilatory  plea,  is  allowed  to  be  tried 
in  this  mode,  which  is  more  unusual  still  than  either  of  the  former. 

4.  By  the  record.  This  takes  place  when  issue  happens  to  be 
joined  between  the  parties,  as  it  sometimes  is,  upon  the  existence 
or  non  existence  of  a  particular  record ;  as  whether  A  is  an  earl  or 
not,  is  triable  by  the  crown-patent  only,  which  is  a  matter  of  record, 
or  if  created  by  writ,  then  by  record  of  Parliament.  .  In  such  a 
case,  as  it  is  a  maxim  that  a  record  can  only  be  proved  by  itself, 
and  it  is  so  absolute  as  to  admit  of  no  contradiction,  it  would  be 


380  ELEMENTS  OF  PROCEDURE 

useless  to  convene  a  jury  for  the  purpose  of  determining  that 
which  the  court  on  the  production  of  the  record  is  bound  to  take 
notice  of.  Accordingly,  when  some  pleading  denies  the  existence 
of  a  record,  the  issue  joined  thereon,  and  which  is  called  an  issue 
of  mil  tiel  record,  concludes  with  an  entry,  stating  that  which 
would  anciently  have  been  stated  by  the  court  viva  voce  on  such  an 
occasion,  namely,  that  a  day  is  assigned  for  the  production  of  the 
alleged  record  and  the  judgment  of  the  court  thereon.  On  the 
day  named  which  must  be  in  Term,  as  the  issue  is  triable  only 
before  the  Court  in  Banc,  the  record,  being  brought  into  court  is 
examined  with  the  statement  in  the  pleading  which  alleges  it,  and 
if  they  correspond,  the  party  asserting  its  existence  obtains  judg- 
ment, otherwise,  his  adversary. 

The  fifth  and  last  existing  mode  of  trial,  and  that  which  is  alone 
of  any  very  great  practical  importance,  is  by  jury,  and  this  requires 
a  somewhat  more  protracted  consideration.  It  is  applicable  to  the 
trial  of  every  issue  of  fact,  which  according  to  the  modern  practice 
is  joined  on  the  pleadings,  except  in  the  case  of  an  issue  taken 
upon  the  existence  of  a  particular  record. 

When  the  plaintiff  has  made  up  his  mind  to  try  the  cause,  he 
must  prepare  his  briefs  and  evidence.  The  brief  contains  a  state- 
ment of  the  pleadings,  case,  and  evidence,  for  the  information  of 
the  counsel  whom  he  intends  to  employ.  With  respect  to  the  evi- 
dence, that  will  of  course  be  either  oral  or  documentary.  \A'here 
the  attendance  of  witnesses  is  required,  he  may  procure  it  by  suing 
out  writs  of  subpoena,  copies  of  which  must  be  served  a  reasonable 
time  before  the  trial  on  the  intended  witnesses,  and  their  necessary 
expenses  at  the  same  time  tendered  to  them;  after  which,  if  they 
neglect  to  attend,  the  plaintiff  may  proceed  against  them,  either  by 
way  of  attachment,  to  punish  their  contempt  of  court,  or  by  way  of 
action,  to  indemnify  him  for  the  injury  he  has  sustained  in  conse- 
quence of  their  absence.  The  writ  of  subpama  may  be  issued  to 
any  part  of  England.  If  the  witness  be  either  in  a  foreign  state, 
or  in  England  under  such  circumstances  as  render  his  personal 
attendance  in  court  impossible,  application  must  be  made  to  the 
court,  which  has  power  to  order  his  examination  before  the  master, 
prothonotary,  or  any  other  person,  if  he  be  within  its  jurisdiction, 
or  to  issue  a  commission  for  his  examination  if  he  be  without. 
As  to  documentary  evidence,  if  the  instruments,  the  proof  of  which 


AT  LAW  381 

is  required  be  in  the  party's  own  possession,  he  must  produce  them; 
if  in  that  of  his  adversary,  he  must  give  him  a  notice  to  produce 
them,  and,  in  case  of  non-compHance,  will  be  allowed  to  give  sec- 
ondary evidence  of  their  contents.  If  they  be  in  the  hands  of  a 
third  person,  the  attendance  of  that  person  with  them  must  be 
enforced  by  a  subpcena  duces  tecum. 


We  will  now  suppose  that  the  jury  have  been  summoned,  and  are 
in  attendance,  and  the  cause  called  on  as  it  will  be  if  properly  entered 
in  its  due  turn.  If  no  motion  be  made  to  put  off  the  trial,  and  the 
plaintiff  being  ready  is  not  forced  to  withdraw  his  record,  the 
first  step  taken  is  to  empanel  and  swear  the  jury.  The  jurors 
are  called  over  and  sworn,  and  as  they  are  called  over,  may,  in  the 
case  of  a  common  jury,  if  either  party  object  to  them,  or  any  of 
them,  be  challenged.  Challenges  are  either  to  the  array  or  to  the 
polls.  Challenges  to  the  array  are  exceptions  to  the  entire  panel,  in 
consequence  of  some  partiality  imputed  to  the  sheriff  or  other 
ofificer  who  arrayed  it.  Challenges  to  the  polls  are  exceptions  to 
particular  jurors,  and  are  of  four  kinds:  First,  propter  honoris 
respect um,  as,  if  a  lord  of  parliament  were  to  be  empaneled;  sec- 
ondly, propter  defectum,  as  if  one  of  the  jurors  be  an  infant,  alien, 
idiot,  or  lunatic,  or  have  not  a  sufficient  estate;  thirdly,  propter 
affectum,  or  for  partiality,  and  this  is  either  principal,  i.e.,  carry- 
ing with  it  a  manifest  ground  of  suspicion,  or  to  the  favor.  A 
challenge  is  principal  when  the  juror  is  related  within  the  ninth 
degree  to  either  party,  or  has  been  arbitrator,  or  is  interested  in 
the  cause,  or  has  an  action  depending  with  one  of  the  parties,  or 
has  taken  money  for  his  verdict,  or  formerly  been  a  juror  in  the 
same  cause,  or  is  a  master,  servant,  counsellor,  steward,  or  attorney 
to,  or  of  the  same  society  or  corporation  with  one  of  the  parties; 
all  these  are  principal  causes  of  challenge,  which,  if  true,  cannot 
be  overruled,  for  jurors  must  be  omni  exceptione  major es.  A  chal- 
lenge to  the  favor  is  grounded  only  on  some  probable  cause  of 
suspicion,  as  acquaintance  or  the  like,  the  validity  of  which  is 
determined  by  triors;  these,  if  the  first  juror  be  challenged,  are  two 
indifferent  persons  named  by  the  court;  if  they  find  one  man 
indifferent,  he  shall  be  sworn,  and  he  with  the  two  triors  shall  try 
the  next,  and  when  another  is  found  indifferent  and  sworn,  the 
two  triors  shall  be  superseded,  and  the  two  first  sworn  on  the 
jury  shall  try  the  rest. 


382  ELEMENTS  OF  PROCEDURE 

Fourthly,  propter  delictum;  this  species  of  challenge  may  take 
place  when  the  juror  is  tainted  by  some  crime  or  misdemeanor 
which  affects  his  credit. 

As  soon  as  the  jury  have  been  sworn,  the  junior  counsel  for  the 
plaintiff  opens,  that  is,  shortly  states  the  pleadings,  and  the  leading 
counsel  on  that  side  which  has  the  right  to  begin  proceeds  to  address 
the  jury.  This  right  to  begin  is  frequently  a  matter  of  the  very 
greatest  importance,  for  it  is  an  invariable  rule  that  the  counsel 
who  begins  has,  if  the  opposite  side  call  witnesses,  a  right  to  reply; 
and  it  is  w^ell  known  from  experience,  that  in  a  doubtful  case,  the 
reply  of  an  able  advocate  frequently  determines  the  fate  of  the 
action.  And  this  occasions  sometimes  the  exertion  of  great  ingenu- 
ity on  the  part  of  the  pleaders  who  put  every  art  in  practice  for  the 
purpose  of  securing  for  their  clients  a  privilege  of  so  much  import- 
ance. An  inexperienced  person  is  sometimes  surprised  seeing  an 
experienced  pleader  admit  facts  to  his  own  disadvantage  upon  the 
record,  which  he  might,  if  he  so  pleased,  have  traversed,  not  divining 
that  these  seeming  omissions  are  purposely  committed,  with  a  view 
of  securing,  if  possible,  the  last  word  to  the  jury. 

The  question,  which  side  shall  be  entitled  to  begin,  is  governed 
by  general  maxims,  Ei  incumhit  probatio,  qui  dicit  non  qui  negat; 
for,  as  it  is  very  difficult,  and  sometimes  impossible,  to  prove  a 
negative,  it  is  natural  that  the  onus  of  proof  should  be  upon  the  party 
asserting  the  affirmative,  and  this  is,  generally  speaking,  the  rule 
of  law;  for  instance,  if  to  an  action  on  a  promissory  note,  the 
defendant  pleaded  "that  he  did  not  make  the  note"  the  affirmative 
being  on  the  plaintiff,  it  would  be  for  him  to  begin;  but,  if  the 
defendant  had  pleaded  "that  he  paid  the  note,"  then  the  affirma- 
tive would  be  on  him,  and  he  would  begin  at  the  trial. 

The  case  having  been  opened,  witnesses  are  called  for  the  party 
beginning;  the  counsel  on  the  opposite  side  has  then  an  opportunity 
of  laying  his  case  before  the  jury,  and  if  he  call  witnesses,  the 
party  who  commenced  has  a  right  to  the  reply.  The  judge  then 
sums  up  and  the  jury  returns  the  verdict,  which  is  either  general, 
for  the  plaintiff  or  defendant,  or  special,  stating  all  the  facts  of  the 
case,  and  leaving  it  to  the  court  to  pronounce  a  proper  judgment. 
When  a  special;  verdict  is  found  the  case  is  set  down  for  argu- 
ment, and  discussed  before  the  full  court,  in  the  same  way  as  a 


AT  LAW  383 

demurrer;    and   the  judgment  pronounced   upon  it  may,   if  the 
unsuccessful  party  please,  be  reviewed  by  writ  of  error. 

But  the  most  ancient  modes  of  carrying  a  point  of  law  raised  at 
the  trial  before  a  superior  tribunal,  were  by  bill  of  exceptions  or 
demurrer  to  the  evidence.  The  latter  species  of  proceeding  is  now 
almost  obsolete;  it  consisted  in  either  party's  admitting  all  the 
facts  adduced  in  evidence  to  be  true,  and  every  conclusion  which 
the  evidence  given  conduced  to  prove,  but  asserting  that  the  law 
arising  upon  them  all  was  in  his  own  favor,  and  that  he  was 
entitled  to  judgment,  the  precise  operation  of  which  is  to  take  from 
the  jury  and  refer  to  the  judges  the  application  of  the  law  to  the 
facts,  whereas  ordinarily  the  judge  declares  to  the  jury  what  the 
law  is  upon  the  facts,  which  they  find,  and  then  they  compound 
their  verdict  of  the  law  and  the  fact  thus  ascertained. 

A  bill  of  exceptions  is  a  proceeding  by  no  means  unusual,  even 
at  the  present  day.  It  occurs,  when  the  counsel  for  either  party  is 
dissatisfied  with  the  direction  of  the  judge  trying  the  cause,  in  point 
of  law,  or  with  his  rejection  or  admission  of  evidence.  In  such  a 
case,  he  may  draw  up  his  objections  in  writing,  and  tender  them 
to  the  judge  at  the  trial  and  before  verdict,  who  is,  if  they  be  truly 
stated,  bound  by  stat.  West.  2  (13  Edw.  1,  c.  31)  to  affix  his  seal 
to  the  document.  This  bill  of  exceptions  is  then  tacked  to  the  record 
of  which  it  becomes  part,  and  may  be  carried  into  a  court  of  error 
if  advisable ;  and  the  only  mode  of  taking  advantage  of  it  is  by  writ 
of  error,  for  the  court  in  which  the  action  was  brought  does  not  take 
any  notice  of  it,  but  gives  judgment  as  if  it  were  not  in  existence. 

It  sometimes  happens,  that  instead  of  going  on  to  verdict,  the 
trial  is  suddenly  put  an  end  to  in  a  mode  not  requiring  the  inter- 
vention of  the  jury.  This  may  happen  in  four  different  ways; 
first,  by  the  plaintiff's  suffering  a  nonsuit;  secondly,  by  the  parties 
agreeing  to  withdraw  a  juror;  thirdly,  by  the  judge  discharging  the 
jury  from  finding  any  verdict. 

With  regard  to  a  nonsuit  —  the  word  is  derived  from  the  Latin 
non  sequitur,  or  more  nearly  from  the  French  ne  suit  pas,  because 
the  plaintiff  does  not  follow  up  his  suit  to  its  legitimate  conclusion ; 
for,  in  the  ancient  times  before  the  jury  gave  their  verdict,  the 
plaintiff  was  called  upon  to  hear  it,  in  order  that,  if  it  proved 
adverse  to  him,  he  might  be  held  answerable  for  the  fine  which  was 
in  those  days  levied  upon  an  unsuccessful  plaintiff.     If  he  did  not 


384  ELEMENTS  OF  PROCEDURE 

appear  when  thus  called  upon,  he  was  nonsuited,  that  is,  adjudged 
to  have  deserted  his  action,  and  the  court  gave  judgment  against 
him  for  his  default.  And  hence  proceeds  the  ceremony,  which  takes 
place  even  at  this  day,  of  calling  the  plaintiff  to  come  into  the  court 
when  about  to  be  nonsuited  and  warning  him  that  he  will  lose  his 
writ  of  nisi  prius,  that  is,  that  he  will  lose  the  benefit  of  the 
jury  process  by  which  he  has  convened  the  jury  who  are  now 
about  to  become  superfluous  in  consequence  of  his  default  in  not 
appearing. 

Another  consequence  of  the  ancient  practice  is,  that  a  plaintiff 
cannot  be  nonsuited  against  his  will ;  for  a  default  is,  in  the  nature 
of  things,  voluntary,  and  when  he  is  called  upon  to  appear  he  may, 
if  he  think  fit,  make  answer  by  his  counsel,  and,  if  he  do,  there  can 
be  no  nonsuit;  and,  although  it  is  usual  and  certainly  highly  proper, 
for  the  plaintiff's  counsel  to  yield  to  the  opinion  of  the  judge,  when 
che  latter  intimates  that  his  case  is  not  made  out,  and  that  he  ought 
to  sufifer  a  nonsuit,  still,  there  have  been  instances,  in  which  the 
plaintiff's  counsel  have  persisted  in  appearing  and  have  even  gained 
a  verdict  by  their  pertinacity.  But  it  is  very  dangerous  to  resist  the 
judge,  when  he  is  of  opinion  that  there  ought  to  be  nonsuit,  for  if 
the  plaintiff  disregard  his  intimation  he  is  certain  to  direct  the  jury 
to  find  the  verdict  for  the  defendant,  and  though  it  is  true  that  the 
plaintifT  whether  he  submit  to  a  nonsuit,  or  have  a  verdict  found 
against  him,  must  equally  pay  costs  to  the  defendant,  still  there  is 
this  great  practical  difference  between  a  verdict  for  the  defendant 
and  a  nonsuit,  namely,  that  the  former  has  the  effect  of  forever  bar- 
ring and  determining  his  right  of  action,  whereas,  after  the  latter 
he  may  bring  a  fresh  action,  and  if  he  come  prepared  with  better 
evidence,  may  perhaps  succeed  in  it. 

The  withdrawal  of  a  juror  takes  place  when  neither  party  feels 
sufficient  confidence  to  render  him  anxious  to  persevere  till  verdict. 
In  such  case,  they  may,  by  consent,  for  it  cannot  be  done  otherwise, 
withdraw  a  juror,  and  as  that  leaves  the  jury  incomplete,  there  can 
be  no  verdict,  and  the  trial  comes  to  an  end ;  a  party  who  consents  to 
such  arrangement  is  bound  by  it,  and  the  court  will  stay  fresh 
proceedings  in  the  same  cause,  as  being  contrary  to  good  faith. 
It  is  a  kind  of  drawing  stakes,  and  leaves  each  party  to  pay  his 
own  costs. 

It  sometimes  becomes  necessary  to  discharge  the  jury,  either  on 
account  of  the  sudden  illness  of  a  juryman,  as  in  Rex  w.  Edwards, 
3  Campb.  207,  or  because  they  cannot  agree,  in  which  case,  when 


AT  LAW  385 

there  Is  no  hope  of  their  resolving  on  a  verdict,  it  is  now  the  practice 
to  discharge  them- 

The  proceedings  next  to  be  considered  are  those  in  which  the 
result  of  the  trial  at  nisi  prius .  obtained  in  the  manner  above 
described  may,  in  the  ensuing  Term,  be  impeached  or  controlled. 
These  are: 

1.  A  motion  for  a  new  trial. 

2.  To  enter  a  verdict  or  nonsuit,  pursuant  to  leave  reserved, 

3.  For  a  venire  de  novo. 

4.  For  judgment  non  obstante  veredicto. 

5.  In  arrest  of  judgment. 

6.  For  a  repleader. 

A  motion  for  a  new  trial,  which  is  the  most  ordinary  of  these 
applications,  is  a  proceeding  of  which  we  find  no  instance  till  the 
year  1665.  In  that  year,  in  the  case  of  Wood  v.  Gunston,  Styles 
462,  466,  we  meet  with  the  first  reported  instance  of  a  motion  for 
a  new  trial.  In  ancient  times,  the  mode  of  impeaching  the  verdict, 
if  not  warranted  by  the  evidence,  was  one  of  the  most  barbarous 
and  most  extraordinary  that  it  could  have  entered  into  the  imagi- 
nation of  man  to  devise.  It  was  supposed  that,  if  twelve  men  gave 
an  untrue  verdict,  they  must  have  been  actuated  to  do  so  by  cor- 
rupt motives;  and,  therefore,  the  unsuccessful  party  was  at  liberty 
to  sue  out  a  writ  called  "a  writ  of  attaint,"  of  which  there  is  an 
account  in  Finch's  Law,  484,  and  which,  at  first,  applied  to  real 
actions  only,  but  was  extended  by  34  Edw.  3,  c.  7,  to  all  actions  what- 
ever. Under  the  authority  of  this  "writ  of  attaint,"  a  jury  of  twenty- 
four  men  was  convened,  to  try  the  validity  of  the  first  verdict ;  the 
same  evidence  only  was  allowed  upon  the  second  trial,  as  had  been 
given  on  the  first;  and  if,  upon  the  second  trial,  the  jury  of  twenty- 
four  returned  a  verdict  contrary  to  that  of  the  first  jury,  not  only 
was  the  first  verdict  set  aside,  but  the  Court  pronounced  upon  the 
jury  who  gave  it,  judgment  that  they  should  lose  all  civil  rights, 
and  be  perpetually  infamous ;  that  they  should  forfeit  all  tlleir  goods, 
and  the  profits  of  their  lands;  should  be  themselves  imprisoned, 
their  wives  and  children  driven  out  of  doors,  their  houses  razed,  and 
their  lands  wasted.  Although  the  barbarity  of  this  proceeding 
caused  it,  as  may  be  readily  supposed,  to  become  obsolete  as  civili- 
zation progressed,  yet  there  are  instances  of  its  having  been  resorted 
to  in  the  reign  of  Elizabeth,  and  it  was  not  formally  abolished  until 
Stat.  6  Geo.  4,  c.  50,  s.  60. 


386  ELEMENTS  OF  PROCEDURE 

When  this  absurd  and  frightful  process  fell  into  disuse,  the  courts, 
finding  it  absolutely  necessary  that  some  mode  should  exist  of  recti- 
fying the  erroneous  verdict  of  a  jury,  began  to  listen  to  the  appli- 
cations which  ha\e  now  become  frequent,  and  they  founded  their 
power  of  doing  so  on  this  principle,  namely,  that  if  the  jury  gave 
a  wrong  verdict,  that  would  not  warrant  them  in  pronouncing  an 
iniquitous  judgment:  and  therefore  if  there  appeared  reason  to 
fear  that  such  would  be  the  consequence  they  had  the  right  to  refer 
the  cause  to  another  examination,  and,  accordingly,  a  motion  for  a 
new  trial  may  now  be  made  on  any  ground  which  raises  a  fair 
probability  that  the  verdict  at  the  first  trial  was  erroneous. 

The  grounds  on  which  an  application  for  a  new  trial  is  usually 
based  are  1st,  that  the  judge  who  tried  the  cause  misdirected  the 
jury  in  point  of  law,  or  committed  a  mistake  by  admitting  evidence 
which  ought  to  have  been  refused,  or  rejecting  evidence  which  ought 
to  have  been  admitted ;  for  in  such  cases,  as  the  jury  have  been  mis- 
informed of  the  true  point  they  were  convened  to  try,  or  have  been 
deprived  of  proper,  or  furnished  with  improper  materials  to  build 
their  conclusion  on,  it  cannot  be  expected  that  they  should  have 
returned  a  proper  verdict;  and,  though  it  was  once  thought,  that, 
if  a  judge  rejected  evidence  which,  though  admissible  in  point  of 
law,  could  not  be  reasonably  supposed  to  bear  sufficient  weight  to 
have  induced  the  jury  to  arrive  at  a  different  verdict,  even  had  it 
been  submitted  to  them,  the  rejection  of  such  evidence  would  not 
be  a  sufficient  ground  for  a  new  trial:  still,  as  it  is  impossible  to 
estimate  the  precise  effect  which  an  additional  fact,  however  trivial, 
may  produce,  upon  the  minds  of  others,  the  Court  of  Exchequer,  in 
the  late  case  of  Crease  v.  Barrett,  5  Tyrwh.  475,  expressed  their 
opinion,  that,  if  the  evidence  improperly  rejected  could  have  had 
any  effect  whate\er  on  the  jury,  there  ought  to  be  a  new  trial. 

Another  ground  of  application  is,  that  the  successful  party  mis- 
behaved. As  in  the  case  of  Coster  v.  Merest,  3  B.  &  B.  272,  where 
handbills  reflecting  on  the  plaintiff's  character  had  been  distributed 
about  the' court  and  even  shewn  to  the  jury.  So  if  any  of  the  jury 
have  misbehaved,  it  is  a  ground  for  a  new  trial,  as  in  Ramadge  v. 
Ryan,  9  Bing.  333. 

Another  ground  on  which  a  new  trial  is  sometimes  allowed,  is, 
that  the  damages  are  excessive.  In  actions,  indeed,  for  personal 
tort,  such  as  slander,  or  malicious  prosecution,  and  especially  in 
actions  for  criminal  conversation  or  seduction,  the  courts  are 
extremely  averse  to  grant  a  new  trial,  unless  the  damages  given  at 


AT  LAW  387 

the  first  were  perfectly  outrageous.  New  trials  have  been  granted 
also  when  the  former  verdict  was  obtained  by  surprise,  or  the  wit- 
nesses for  the  prevailing  party  are  manifestly  shewn  to  have  com- 
mitted perjury.  In  short,  whenever  it  can  be  made  out  to  the 
satisfaction  of  the  court  that  a  new  trial  should  be  had,  there  the 
application  may  be  made,  and  it  is  in  the  power  of  the  court  to 
accede  to  it. 

One  of  the  commonest  grounds  on  which  new  trials  are  applied 
for,  is,  that  the  verdict  has  been  either  against  the  weight  of  the 
evidence,  or  without  any  evidence  at  all.  Where  there  was  no  evi- 
dence at  all  to  warrant  the  conclusion  come  to  by  the  jury  the  court 
will  always  grant  a  new  trial.  But,  where  there  was  some  evidence 
upon  the  winning  side,  they  interfere,  if  at  all,  with  great  reluctance, 
considering  that  where  there  is  conflicting  testimony,  it  is  the  prov- 
ince of  the  jury,  not  the  court,  to  strike  the  balance. 

A  motion  for  venire  de  novo,  is  a  proceeding  very  similar  to  that 
for  a  new  trial,  and  its  effect,  if  granted,  is  identical;  for,  when  a 
venire  de  novo  is  awarded,  another  trial  of  the  cause  is  had,  as  if  a 
rule  for  a  new  trial  had  been  made  absolute;  and,  indeed,  the  very 
name  of  the  proceeding  itself  so  signifies,  for  the  words  venire  de 
novo  mean  no  more  than  that  a  new  venire  (which  is  the  first  of  the 
two  writs  constituting  the  jury  process)  is  to  be  directed  to  the 
sheriff.  Still,  there  are  several  distinctions  between  a  motion  for  a 
venire  de  novo,  and  for  a  new  trial.  The  new  trial  is  grantable  for 
any  reason  which  renders  it  right,  fit,  and  just  that  the  first  verdict 
should  undergo  revision.  And,  though  in  some  cases,  for  instance 
those  of  misdirection,  or  the  improper  admission  or  exclusion  of 
evidence,  a  new  trial  is  a  matter  of  right,  still,  there  are  also  many 
cases  in  which  it  lies  in  the  absolute  discretion  of  the  Court  to  grant 
or  refuse  it;  or,  if  they  grant  it,  to  modify  the  rule  by  which  they 
do  so,  by  introducing  such  conditions  as  they  deem  proper.  But  it 
is  otherwise  with  the  award  of  a  venire  de  novo,  which  is  a  proceed- 
ing far  more  ancient  than  the  motion  for  a  new  trial.  In  cases 
where  it  is  grantable,  the  Court  is  bound  to  grant  it,  and  can  exer- 
cise no  discretion  on  the  subject.  But  then  those  cases  are  compar- 
atively few  in  number,  and  the  grounds  for  awarding  it  are  not,  as 
in  many  of  the  instances  in  which  a  new  trial  is  granted,  of  an 
equitable  description,  but  are  of  a  more  technical  sort  —  such  as  the 
wrongful  disallowance  of  a  challenge,  or  some  defect  in  the  word- 
ing of  the  verdict,  which  renders  it  uncertain  and  ambiguous.     Nor 


388  ELEMENTS  OF  PROCEDURE 

can  the  Court,  as  in  the  case  of  a  new  trial,  impose  a  condition 
on  the  party  claiming  the  venire  de  novo,  or  exercise  any  discretion 
as  to  costs. 

A  motion  for  judgment  wow  obstante  veredicto,  is  one  which,  it 
is  said  in  the  late  case  of  Rard  v.  Vaiighan,  1  Bing.  N.  C.  767,  can 
only  be  made  by  a  plaintiff.  The  lord  chief  justice  there  states  that 
there  is  no  instance  to  be  found  in  any  of  the  books  of  such  a  judg- 
ment having  been  awarded  at  the  instance  of  a  defendant.  It  is 
given  when,  upon  an  examination  of  the  whole  pleadings,  it 
appears  to  the  Court  that  the  defendant  has  admitted  himself  to  be 
wrong,  and  has  taken  issue  on  some  point  which  though  decided  in 
his  favor  by  the  jury,  still  does  not  at  all  better  his  case. 

A  motion  in  arrest  of  judgment  is  the  exact  reverse  of  that  for 
judgment  non  obstante  veredicto.  The  applicant  in  the  one  case 
insists  that  the  plaintiff  is  entitled  to  the  judgment  of  the  Court, 
although  a  verdict  has  been  found  against  him.  In  the  other  case, 
that  he  is  not  entitled  to  the  judgment  of  the  Court,  although  a 
verdict  has  been  delivered  in  his  favor.  Like  the  motion  for  judg- 
ment non  obstante  veredicto,  that  in  arrest  of  judgment  must  always 
be  grounded  upon  something  apparent  on  the  face  of  the  pleadings; 
for  instance,  if  in  an  action  against  the  indorser  of  a  bill  of  exchange, 
the  plaintiff  were  to  omit  to  allege  in  his  declaration  that  the 
defendant  had  notice  of  dishonor,  judgment  would  be  arrested  even 
after  a  verdict  in  his  favor, 

A  motion  for  a  repleader  becomes  necessary  where  it  appears 
that,  in  the  course  of  pleading,  the  parties  have  so  mistaken  the 
true  question  in  the  case,  that  they  have  raised  an  issue,  which  for 
whomever  it  may  be  found,  will  not  decide  the  cause  either  one  way 
or  the  other.  In  such  case,  as  the  verdict  leaves  it  totally  in  dubio 
which  party  will  ultimately  prove  entitled  to  recover,  the  only 
course  by  which  the  true  state  of  the  merits  can  be  ascertained  is  to 
award  a  repleader  —  that  is,  to  direct  that  the  parties  shall  begin 
again  at  that  part  of  the  pleadings  in  which  the  mistake  which  led 
to  the  immaterial  issue  was  committed  and  replead,  till  they  have 
arrived  at  one  more  fitted  to  decide  the  cause.  When  it  becomes 
necessary  to  take  this  course,  as  both  parties  are  in  fault,  neither  is  en- 
titled to  the  costs  of  the  proceedings  which  have  turned  out  useless. 

If  none  of  the  above  applications  be  successfully  made,  the  next 
occurrence  in  the  suit  is  Judgment.  This  is  the  sentence  of  the  law 
upon  the  matter  appearing  from  the  previous  proceedings  in  the 
suit;  and,  unless  the  Court  be  equally  divided  in  opinion,  in  which 


AT  LAW  389 

case  no  judgment  can  be  given,  it  is  for  the  plaintiff,  by  the  defend- 
ant's confession  or  default;  for  the  defendant,  upon  nonsuit,  or  as 
in  the  case  of  nonsuit,  non  pros.,  retraxit,  nolle  prosequi,  discon- 
tinuance, or  stet  processus;  and  for  either  party  upon  demurrer, 
issue  of  nut  tiel  record  or  verdict. 

Judgments  are  either  interlocutory  or  final.  Interlocutory  judg- 
ments are  occasionally  given  upon  some  plea,  proceeding,  or  default 
occurring  in  the  course  of  the  action,  and  which  does  not  terminate 
the  suit.  Of  this  nature  are  judgments  on  demurrer,  to  certain 
dilatory  pleas  called  Pleas  in  Abatement.  But  the  most  common 
kind  of  interlocutory  judgments  are  those  which  are  given  when 
the  right  of  the  plaintiff  is  indeed  established,  but  the  quantum  of 
damages  sustained  by  him  is  not  ascertained,  which  is  a  matter  that 
cannot  be  done  without  the  intervention  of  a  jury:  this  happens 
when  the  defendant  suffers  judgment  by  default,  or  confession,  or 
upon  a  demurrer,  or  nul  tiel  record,  in  any  of  which  cases  if  a  specific 
ascertained  demand  be  sued  for,  the  judgment  is  final,  because 
then  there  can  be  no  doubt  as  to  what  the  plaintiff  ought  to  recover; 
but,  if  the  demand  be  of  damages  unless  the  defendant  will  admit 
that  they  amount  to  the  whole  sum  laid  in  the  declaration,  a  jury 
must  be  called  on  to  assess  them;  therefore  the  judgment  given  by 
the  Court,  and  entered  on  the  record  in  such  a  case  is,  that  the 
plaintiff  ought  to  recover  his  damages;  but  because  the  Court  knows 
not  what  damages  he  has  sustained,  the  sheriff  is  commanded  to 
inquire  by  a  jury,  and  return  the  inquisition  into  court.  The  process 
directed  to  the  sheriff  for  this  purpose  is  called  Writ  of  Inquiry, 
and  when  he  has  returned  his  inquisition  to  the  Court,  final  judg- 
ment is  given  that  the  plaintiff  do  recover  the  amount  assessed.  In 
some  cases,  indeed  where,  though  the  form  of  action  be  for  dam- 
ages, yet  it  is  easy  to  compute  precisely  what  those  damages  must 
amount  to,  as  where  the  action  is  brought  on  a  bill  of  exchange,  the 
Court  will  order  their  own  officer  to  assess  them  instead  of  issuing 
a  writ  of  inquiry.  And  in  certain  other  cases  where  the  claim  is 
really  unliquidated,  though  it  appears  liquidated  in  the  declaration, 
the  court  will  direct  an  inquiry. 

As  to  a  final  judgment,  it  puts  an  end  to  the  action  altogether,  by 
declaring  either  that  the  plaintiff  is  or  that  he  is  not  entitled  to 
recover,  and  if  he  be  entitled  to  recover,  specifying  what. 

Incident  to  the  judgment  are  the  costs,  which  are  awarded  therein 
to  the  successful  party.  .  .  .     Costs  are  either  interlocutory  or 


390  ELEMENTS  OF  PROCEDURE 

final.  Interlocutory  costs  are  given  upon  matters  arising  in  the 
course  of  the  suit:  they  are  generally  awarded  on  motion,  and  lie 
in  the  discretion  of  the  court  which  exercises  its  equitable  jurisdic- 
tion either  in  granting  or  refusing  them. 

Final  costs  are  given  by  statute,  and  depend  on  the  event  of  the 
action. 

The  law  applicable  to  final  costs,  depends  on  reasons  altogether 
different  from  those  which  govern  the  costs  of  interlocutory  pro- 
ceedings by  way  of  motion  or  summons:  to  grant  or  refuse  the 
latter,  rests,  as  has  been  already  pointed  out,  in  the  equity  and  dis- 
cretion of  the  court  or  judge  d'sposing  of  the  application;  the  for- 
mer, as  they  cannot  be  given  without  a  positive  enactment,  so 
neither,  when  given  by  such  enactment,  can  they  be  taken  away 
except  by  ^•irtue  of  some  power  emanating  from  an  enactment 
equally  positive. 

The  easiest  and  simplest  mode  of  treating  the  subject  of  costs  is 
to  consider  —  first,  the  common  law  regarding  them;  second,  the 
enactment  by  which  plaintiffs  are  entitled  to  them;  third,  those  by 
which  defendants  are  so. 

First,  then,  with  regard  to  the  state  of  the  common  law  respecting 
costs. 

The  rule  adopted  by  the  civil  law  and  all  those  various  codes 
which  have  in  modern  times  been  copied  from  it  was  expressed  by 
that  maxim;  "victus  victor i  in  expensis  damnandus  est.'"  And  so 
consistent  does  it  seem  with  right  and  justice  that  the  prevailing 
party  should  be  reimbursed  by  the  defeated  one,  the  costs  occa- 
sioned by  the  latter's  obstinate  resistance  to  a  well-grounded  claim 
or  vexatious  prosecution  of  an  unjust  demand,  that  it  is  not  easy  to 
conceive  how  a  contrary  rule  could  have  been  adopted,  even  by  a 
people  so  uncultivated  as  our  ancestors.  The  true  reason  will 
perhaps  be  found  in  the  great  simplicity  of  the  proceedings  in  those 
early  times  when  there  was  little  or  no  personal  property',  few  or  no 
contracts,  and  all  trials  concerned  the  ownershi])  of  land.  When  a 
court  was  to  be  found  in  every  manor  of  which  the  lord  was  him- 
self judge,  and  where  the  neighboring  freeholders  constituted  both 
witnesses  and  jury,  little  or  no  expense  could  have  been  incurred, 
and  there  was,  consequently,  little  or  no  necessity  for  reimburse- 
ment. Some  checks  indeed  there  were,  e\'en  in  those  times,  on 
vexatious  litigation,  for  a  fine  was  imposed  on  the  ])laintift"  if  he 
failed,  as  a  punishment  for  his  unjust  prosecution;  while,  on  the 
other  hand,  the  jury  usually  were  directed  in  assessing  damages 


AT  LAW  391 

against  the  defendant  to  take  into  consideration  the  expense  to 
which  the  plaintiff  had  been  wrongfully  subjected  through  his 
obstinacy.  However,  when  forms  became  less  simple,  and  liti- 
gation more  expensive,  it  was  found  necessary  to  adopt  some  more 
certain  means  of  indemnifying  the  successful  party.  The  Legisla- 
ture, therefore,  interfered,  and  this  brings  us  to  the  consideration 
of  those  Acts  of  Parliament  from  which  a  plaintiff's  right  to  costs 
derives  its  origin. 

The  first  of  these  took  place  during  the  reign  of  that  great  im- 
prover of  all  branches  of  English  law,  Edward  L  The  Statute  of 
Gloucester  passed  in  the  sixth  year  of  his  reign,  c.  1,  provides  in 
its  second  section,  "that  the  demandant  shall  recover  against  the 
tenant  the  costs  of  the  writ  purchased,  and  that  this  act  shall  hold 
place  in  all  cases  where  a  man  recovers  damages."  A  very  liberal 
interpretation  was  given  to  this  act,  the  words  "costs  of  the  writ 
purchased"  have  been  held  to  include  the  whole  costs  of  the  suit  of 
which  that  writ  is  the  commencement;  and  though  the  words 
"demandant"  and  "tenant"  do  not,  prima  facie,  appear  applicable 
to  personal  actions,  yet  the  direction  which  ensues,  "that  the 
statute  shall  extend  to  all  cases  in  which  a  man  recovers  damages," 
has  been  held  to  extend  it  to  actions  of  Trespass,  Trover,  Case, 
Assumpsit,  Debt  upon  Contract,  Covenant,  Replevin,  and  Eject- 
ment, in  all  which  the  plaintiff  is  at  this  day  entitled  to  his  costs, 
by  virtue  of  the  Statute  of  Gloucester. 

We  now  come  to  defendants  whose  interests,  in  this  respect,  were 
not  attended  to  so  soon  as  those  of  plaintiffs;  for  previous  to  the 
Statute  of  Gloucester,  as  has  been  already  mentioned,  judges  had 
been  in  the  habit  of  directing  the  juries  to  allow  the  plaintiff,  when 
successful,  some  compensation  for  his  costs,  in  assessing  the  amount 
of  damages;  and  it  was  as  a  substitute  for  this  that  the  Statute  of 
Gloucester  gave  him  costs.  But  the  defendant,  as  he  never  recov- 
ered damages,  had  of  course,  nevei'  been  able  to  obtain  compensa- 
tion through  the  medium  of  the  jury;  so  that  the  framers  of  the 
Statute  of  Gloucester,  who  considered  themselves  as  providing  a 
substitute  for  the  antecedent  practice  of  assessing  compensation  by 
the  jury,  took  no  notice  of  the  case  of  the  defendant,  to  whom  that 
practice  never  had  extended.  Justice  and  reason  were,  however, 
too  strongly  in  his  favor  to  suffer  him  to  be  long  neglected.  Accord- 
ingly, by  Stat.  23  Hen.  8,  c.  15,  it  was  directed  that  in  debt,  cove- 
nant, detinue,  and  case,  the  defendant,  if  the  plaintiff  should  be 


392  ELEMENTS  OF  PROCEDURE 

nonsuited,  or  a  verdict  passed  against  him,  should  recover  such 
costs  as  the  plaintiff  would  have  recovered  had  he  been  successful: 
and  this  statute  was  extended  by  stat.  4  Jac.  1  c.  3,  to  all  actions 
whatever  in  which  the  plaintiff  if  he  succeeded,  would  be  entitled  to 
costs;  so  that  by  the  joint  operation  of  these  two  statutes,  whenever 
there  is  a  nonsuit,  or  a  verdict  for  the  defendant,  he  has  a  right  to 
costs,  if  the  plaintiff  would  have  had  a  right  to  them. 

The  plaintiff  having  obtained  judgment  is,  in  the  ordinary  course 
of  things,  entitled  to  issue  execution,  but  there  are  certain  pro- 
ceedings in  the  nature  of  appeals,  by  means  of  which  the  judgment 
is  sometimes  rendered  ineffectual,  and  the  prevailing  party's  right 
to  execution  superseded. 

This  may  in  some  cases  be  done  by  a  writ  of  audita  querela  which 
is  sued  out  when  a  defendant  against  whom  judgment  has  been 
given,  and  who  is  therefore  in  danger  of  execution,  or  perhaps 
actually  in  execution,  has  some  good  matter  of  discharge  which  has 
happened  since  the  judgment,  and  therefore  applies  to  the  court  to 
be  relieved  against  the  oppression  of  the  plaintiff.  It  is  named 
from  the  words  with  which  it  commences,  stating  that  the  com- 
plaint of  the  defendant  hath  been  heard,  and  enjoins  the  court  to 
do  justice  between  him  and  the  plaintiff.  However,  as  the  court 
will  now^  in  most  of  the  cases  where  an  audita  querela  used  to  be  sued 
out,  give  summary  relief  on  motion,  this  species  of  proceeding  has 
fallen  into  neglect. 

A  Writ  of  Error  is  an  original  writ  issuing  out  of  the  Court  of 
Chancer>%  in  the  nature  as  well  of  a  certiorari  to  remove  a  record 
from  an  inferior  to  a  superior  court,  as  of  a  commission  to  the  judges 
of  such  superior  court  to  examine  the  record,  and  to  affirm  or 
reverse  it  according  to  law;  and  it  lies  where  a  party  is  aggrieved 
by  any  error  in  the  foundation,  proceeding,  judgment,  or  execution 
of  a  suit  in  a  court  of  record.  Co.  Litt.  288  b.  It  is  an  appeal  against 
the  judgment,  grounded  either  on  the  suggestion  of  some  fact  which 
renders  the  judgment  erroneous,  as  for  instance,  when  the  plaintiff 
or  defendant  dies  before  verdict  or  interlocutory  judgment;  or  on 
some  error  in  point  of  law,  apparent  on  the  face  of  the  proceeding. 
When  it  is  grounded  upon  the  suggestion  of  a  fact,  it  is  mostly 
brought  in  at  one  of  the  courts  at  Westminster  in  which  the  judg- 
ment was  given.  Such  a  proceeding  is  called  a  writ  of  error  Coram 
Vobis,  or  if  the  judgment  be  one  of  the  king's  bench.  Coram  Nobis, 
on  account  of  its  being  founded  on  the  record  which,  in  the  one 


AT  LAW  393 

case,  remains  in  the  Court  of  our  Lord  the  King,  before  the  king 
himself,  and  in  the  other  case,  before  the  king's  justices. 

A  Writ  of  Error  from  either  of  the  three  courts  at  Westminster 
to  a  superior  court  is  founded  on  some  defect  of  law  manifest  upon 
the  record.  By  stat.  1  Wm.  4,  c.  70,  writs  of  error  upon  any  judg- 
ment of  the  king's  bench,  common  pleas,  or  exchequer,  shall  be 
returnable  only  before  the  judges,  or  judges  and  barons,  as  the  case 
may  be,  of  the  other  two  courts,  in  the  exchequer  chamber,  whence 
error  again  lies  to  the  House  of  Lords,  the  decision  of  which  is  final. 

It  must  be  sued  out  within  twenty  years  after  judgment,  except 
indeed  in  the  case  of  a  person  being  an  infant,  feme  covert,  non 
compos  mentis,  in  prison,  or  beyond  the  seas.  It  is  generally 
brought  by  the  party  against  whom  the  judgment  has  been  given, 
but  may  be  sued  out  by  a  plaintiff  to  reverse  his  own  judgment,  if 
erroneous,  and  enable  him  to  bring  another  action.  But  the  person 
who  brings  it  must  be  either  party  or  privy  to  the  judgment  or 
prejudiced  by  it,  and  therefore  capable  of  deriving  an  advantage 
from  its  reversal.  And  if  there  be  one  judgment  against  several, 
they  cannot  bring  separate  writs  of  error,  but  must  all  join  in  bring- 
ing a  single  one,  for  otherwise  the  plaintiff  might  be  harassed  by  a 
multiplicity  of  writs  of  error. 

The  writ  is  sued  out  of  the  court  of  chancery  and  directed  to  the 
person  in  the  court  below  who  has  the  custody  of  the  record;  as, 
in  the  king's  bench  and  common  pleas,  to  the  lord  chief  justice; 
in  the  exchequer,  to  the  treasurer  and  barons.  It  commands  the 
inferior  court  to  certify  the  record  to  the  court  of  appeal,  and  the 
superior  court  to  examine  it  and  affirm  or  reverse  the  judgment 
according  to  law.  And  in  order  that  a  writ  of  error  may  operate 
as  a  stay  of  execution,  it  is,  unless  the  court  or  a  judge  on  special 
application,  order  otherwise,  necessary  that  the  defendant  prose- 
cuting a  writ  of  error,  and  who  is  then  called  plaintiff  in  error, 
should  put  in  bail,  with  two  sufficient  sureties,  to  prosecute  his  writ 
of  error  with  effect,  and  also  to  pay,  if  the  writ  of  error  be  non 
prossed,  or  the  judgment  affirmed,  all  the  debt,  damages,  and  costs 
adjudged  upon  the  former  judgment,  and  all  costs  and  damages  to 
be  awarded  for  the  delaying  of  the  execution.  These  sureties  are 
bound  by  recognizance  in  double  the  sum  recovered,  except  in  the 
case  of  a  penalty,  and  in  the  case  of  a  penalty,  in  double  the  sum 
really  due  and  double  the  costs.  Within  twenty  days  after  the 
allowance  of  the  writ  of  error,  the  plaintiff  in  error  must  get  a 
transcript  of  the  record  prepared  and  examined  by  the  clerk  of  the 


394  ELEMENTS  OF  PROCEDURE 

errors  of  the  court  in  which  judgment  was  given;  otherwise  his 
writ  of  error  will  be  non  prossed ;  this  transcript  the  clerk  of  the 
errors  must  annex  to  the  writ  of  error,  and  deliver  it  when  it  becomes 
returnable,  to  the  clerk  of  the  errors  in  the  court  of  error.  After 
the  writ  has  been  returned  into  the  court  above,  the  plaintiff  in 
error  may,  by  stat.  5,  Geo.  1,  c.  13,  move  the  court  of  error  to 
amend  any  defect  that  he  perceives  in  it ;  this  could  not  have  been 
done  at  common  law,  since  the  writ  of  error  is  the  only  authority  of 
that  court,  and  no  court  can  at  common  law  amend  its  own  com- 
mission ;  or  the  defendant  in  error  may  move  to  quash  the  writ,  and 
will  be  entitled  to  his  costs  if  he  succeed.  It  may  also  abate  by  the 
death  of  the  plaintiff  in  error  before  errors  assigned,  or  by  the  mar- 
riage of  the  plaintiff  in  error,  being  a  woman,  or  by  the  death  of 
the  chief  justice  before  he  has  signed  his  return.  If  none  of  these 
things  happen,  the  plaintiff  in  error  must,  within  eight  days  after 
the  delivery  of  the  writ  with  the  transcript  annexed,  to  the  clerk 
of  the  errors  of  the  court  of  error,  assign  errors,  otherwise  he  may 
be  non  prossed. 

The  Assignment  of  Error  is  in  the  nature  of  a  declaration,  stating 
the  grounds  for  imputing  error  to  the  record  upon  which  the  plain- 
tiff relies.  The  assignment  of  errors  as  well  as  the  subsequent 
pleadings  thereon,  must  be  delivered  between  the  attorneys  of  the 
parties  litigant :  and  the  plaintiff,  having  delivered  it,  may  demand 
a  Plea  of  Joinder  in  Error,  from  the  opposite  party,  who  inust, 
within  twenty  days,  deliver  one  or  demur,  otherwise  the  judgment 
will  be  reversed. 

The  usual  plea  or  Joinder  in  Error  as  it  is  called,  is  in  nuUo  est 
erratum,  — Anglice,  and  that  there  is  no  error  in  the  record;  which 
is  in  the  nature  of  a  demurrer,  and  refers  the  whole  record  to  the 
judgment  of  the  court,  or  the  defendant  in  error  may  plead  a  special 
plea  containing  some  matter,  which  confesses  that  the  record  is 
erroneous,  but  insists  that  the  plaintiff  has  no  right  to  take  advan- 
tage of  the  error,  ex.  gr.,  a  release  of  errors,  or  the  Statute  of  Limi- 
tations ;  to  this  special  plea  the  plaintiff  may  either  reply  or  demur, 
and  the  defendant  may  either  demur  or  rejoin  to  his  replication:  so 
that  at  last,  as  in  the  pleadings  at  the  commencement  of  the  suit, 
an  issue,  either  of  law  or  fact,  is  joined;  which,  if  of  law,  is  deter- 
mined on  argument,  and  if  fact,  is  tried  by  a  jury,  and  judgment 
given  according  to  the  verdict. 

The  judgment  of  the  court  is  either  to  affirm  the  former  judgment; 
to  recall  it  for  error  in  fact;   to  reverse  it  for  error  in  law;   that  the 


AT  LAW  395 

plaintiff  be  barred  of  his  Writ  of  Error,  when  a  plea  of  release  of 
errors  or  of  the  Statute  of  Limitations  is  found  for  the  defendant; 
or  that  there  be  a  venire  facias  de  novo.  And  if  the  judgment  be 
reversed,  the  court  of  error  will  not  merely  overturn  the  decision  of 
the  court  below,  but  will  give  such  a  decision  as  the  court  below 
ought  to  have  given.  If  it  become  necessary  to  enter  the  judgment 
of  the  court  of  error,  it  is  entered  on  the  original  record,  which 
remains  in  the  custody  of  the  court  below,  which  is  empowered  to 
award  such  further  proceedings  as  may  be  necessary  thereon. 

When  the  judgment  is  affirmed  or  the  writ  of  error  non  prossed, 
the  defendant  in  error  is  entitled  to  damages  and  costs,  if  after 
verdict  for  the  plaintiff  below,  to  double  costs;  and  may  have 
execution  for  them  by  ca.  sa.,  fi.  fa.  or  elegit.  He  is  also  entitled  to 
interest  upon  the  judgment  for  the  time  that  execution  has  been 
delayed  by  the  writ  of  error.  If  judgment  be  reversed,  each  party 
must  pay  his  own  costs,  and  the  plaintiff  in  error  will,  if  execution 
have  been  levied  upon  him,  be  entitled  to  a  Writ  of  Restitution,  and 
will  be  restored  to  all  he  has  lost. 

If  the  judgment  be  not  reversed,  vacated,  or  set  aside,  the  pre- 
vailing party  has  a  right  to  issue  execution.  This  if  the  judgment 
be,  as  it  almost  always  is,  for  so  much  money,  is  mostly  by  Writ 
of  Fieri  Facias,  Capias  ad  Satisfaciendum  or  elegit. 

A  fieri  facias  is,  like  the  capias  ad  satisfaciendum  and  elegit  a 
judicial  writ,  and  issues  out  of  the  court  in  which  the  judgment 
against  the  defendant  was  recovered.  Except  in  counties  palatine 
(where  it  is  addressed  to  the  palatine  officer),  it  is  directed  to  the 
sheriff  of  the  county  where  the  venue  in  the  action  was  laid,  com- 
manding him  that  of  the  goods  and  chattels  of  the  defendant,  he 
cause  to  be  made  the  sum  recovered,  and  have  it  before  the  court 
on  the  return  day:  this  being  delivered  to  the  sheriff  or  his  deputy, 
he  makes  a  warrant  to  one  of  his  officers,  or  if  he  be  the  officer  of  a 
county  palatine,  grants  his  mandate  to  the  sheriff,  who,  in  his  turn 
issues  a  warrant  to  his  officer. 

At  common  law  a  fieri  facias  bound  the  defendant's  goods  from 
the  time  of  its  test:  so  that  they  might  have  been  taken,  no  matter 
into  whose  hands  they  had  passed,  and  though  sold  bona  fide  for  a 
valuable  consideration.  However,  as  against  purchasers,  the  goods 
are  now  bound  only  from  the  time  of  delivering  the  writ  to  the 
sheriff.  If  indeed  after  the  delivery  of  the  writ  the  defendant 
assign  his  goods  away,  except  in  market  overt,  the  sheriff  may  take 
them  in  execution.     Under  this  writ  anything  may  be  seized  and 


396  ELEMENTS  OF  PROCEDURE 

sold  that  is  a  chattel  belonging  to  the  defendant,  except  his  neces- 
sary wearing  apparel :  the  sheriff  may  sell  leases  and  terms  of  years 
belonging  to  the  defendant,  fructus  industriales,  such  as  growing 
corn,  which  would  go  to  the  executor,  and  fixtures,  when  the  execu- 
tion is  against  a  tenant  who  could  have  removed  them;  but  he 
cannot  carry  away,  or  sell  for  the  purpose  of  being  carried  away, 
from  lands  let  to  farm,  any  straw,  chaff,  colders,  turnips,  manure, 
compost,  ashes,  or  seaweed  in  any  case  whatever:  nor  any  hay, 
grass,  tares,  vetches,  roots  or  vegetables;  being  the  produce  of 
such  land,  and  which  by  any  agreement  made  for  the  benefit  of  the 
landlord,  and  for  which  the  sheriff  shall  receive  a  verbal  notice  before 
the  sale,  ought  not  to  be  taken  therefrom. 

When  the  writ  becomes  returnable,  the  sheriff  may  return  fieri 
feci,  i.e.,  that  he  has  levied  the  sum  named  in  the  writ,  or  a  part 
of  it,  which  he  is  ready  to  pay  to  the  execution  creditor:  or  that  he 
has  taken  goods  which  remain  unsold  for  want  of  buyers;  or  nulla 
bona,  i.e.,  that  the  defendant  has  no  goods  within  his  bailiwick; 
or  any  other  legal  excuse  for  not  levying.  If  money  have  been 
levied,  and  the  sheriff  neglect  to  pay  it  over,  the  creditor  may  obtain 
it  from  him  either  by  rule  of  court  or  action.  If  part  only  be  levied, 
and  of  course  when  nulla  bona  is  returned,  he  may  have  a  new 
execution  for  the  residue;  and,  if  he  think  proper  still  to  proceed 
by  fieri  facias,  may  sue  out  either  an  alias  fieri  facias  into  the  same, 
or  a  testatum  fieri  facias  into  any  other  county.  If  the  return  be,  that 
the  goods  are  unsold  for  defect  of  buyers,  he  may  have  a  writ  of 
venditioni  exponas  commanding  the  sheriff  to  sell  them.  And,  lastly, 
if  the  return  be  false,  an  action  may  be  brought  against  the  sheriff. 

A  capias  ad  satisfaciendum  is  a  writ  by  which  the  sheriff  is  com- 
manded to  take  the  defendant,  and  him  safely  keep,  so  that  he  may 
have  him  in  court  on  the  return  day  to  satisfy  the  plaintiff.  This 
process  lies  against  every  one  who  was  not  personally  privileged 
against  arrest  at  the  commencement  of  the  suit,  and  against  some 
who  were,  such  as  attorneys. 

The  sheriff  must  execute  it  literally  according  to  its  terms,  and 
has  no  power,  instead  of  arresting  the  defendant,  to  receive  the 
money  due  from  him,  but,  if  the  defendant  wish  to  liberate  himself 
by  payment,  he  must  have  recourse  to  the  execution  creditor,  who 
is  bound,  on  tender  of  the  sum  due,  to  sign  a  proper  authority  for 
his  discharge.  On  the  return  day  of  this  writ  the  sheriff  generally 
returns  Cepi  corpus  et  paratum  habeo,  i.e.,  that  he  has  taken  the  body 


AT  LAW  397 

of  the  defendant  and  has  it  ready;  or  that  the  defendant  is  so  ill 
that  he  cannot  remove  him  without  danger  to  his  life;  or  he  may 
return  non  est  inventus,  i.e.,  that  the  defendant  is  not  found  within 
his  bailiwick.  If  the  last  return  be  made,  the  plaintiff  may  sue  out 
an  Alias  Capias  into  the  same,  or  a  Testatum  Capias  into  another 
county,  or  he  may,  if  he  please,  sue  out  an  Exigi  Facias  and  pro- 
ceed to  Outlawry. 

If  the  defendant  be  taken,  he  either  remains  in  the  custody  of  the 
sheriff  in  the  county  gaol,  or  is  removed  by  Habeas  Corpus  to  the 
prison  of  the  Superior  Court.  In  either  case  the  law  sets  so  high  a 
value  upon  the  liberty  of  the  subject,  that  it  considers  the  execu- 
tion a  satisfaction  of  tlie  judgment  as  against  him;  and,  therefore, 
though  the  defendant  had  died  in  prison,  or  been  discharged  by 
pri\'ilege  of  Parliament,  the  plaintiff's  remedy  would  have  been 
at  an  end,  but  for  stat,  2  Jac.  1,  c.  13  and  21  Jac.  1,  c.  24,  the  former 
of  which  gives  execution  after  the  privilege  of  Parliament  has 
ceased,  and  the  latter  execution  against  the  deceased's  goods  and 
chattels;  and  if  the  defendant  escape  from  the  sheriff,  or  be  rescued, 
the  plaintiff  may  have  new  process  to  retake  him,  though  he  will 
also  in  that  case  have  a  remedy  against  the  sheriff  or  gaoler  for  his 
dereliction  of  duty. 

An  Elegit  is  a  writ  first  given  by  the  statute  of  Westminster  the 
Second,  13  Ed.  1,  c.  18,  which  enacted  that  where  a  debt  is  acknowl- 
edged or  recovered  in  the  King's  Court,  or  damages  awarded,  it 
shall  be  in  the  election  of  him  who  sues  for  such  debt  or  damages, 
to  have  a  Writ  of  Fieri  Facias,  or  that  the  sheriff  deliver  to  him 
all  the  chattels  of  the  debtor,  saving  his  oxen  and  beasts  of  the 
plough,  and  a  moiety  of  his  land,  until  the  debt  be  levied  by  a  reason- 
able price  or  extent. 

This  writ  of  execution  against  a  defendant's  land  may  be  had  as 
well  after  his  death  as  before  it.  The  sheriff,  on  receiving  it,  is  to 
empanel  a  jury  who  inquire  of  the  goods  and  chattels  of  the  defend- 
ant, and  appraise  them,  and  also  inquire  of  his  lands  and  tene- 
ments. The  goods  and  chattels  are  delivered  to  the  plaintiff  at 
the  price  at  which  they  have  been  valued  by  the  jury :  a  mode  differ- 
ent from  that  pursued  in  executing  a  Fieri  Facias,  under  w^hich  the 
sheriff  must  sell  the  goods  w^hich  he  has  taken.  If  the  goods  and 
chattels  w^ere  not  sufficient  to  satisfy  the  plaintiff's  demand,  the 
sheriff  was  to  extend  a  moiety  of  the  lands,  under  which  term  were 
included  reversions  and  rent-charges  belonging  to  defendant,  but 
copy-holds,  rent-seek,  advowsons  in  gross,  or  glebe  belonging  to  a 


398  ELEMENTS  OF  PROCEDURE 

parsonage  or  vicarage  were  not  extendible,  nor  were  lands  held  in 
trust  so,  29  Car.  2,  c.  3,  s.  10:  though,  by  that  statute,  some  species 
of  trust  property,  to  which  the  defendant  was  entitled  at  the  time 
of  execution  sued,  might  have  been  extended. 

The  sheriff  was  to  deliver  a  moiety  of  the  land  to  tlie  plaintiff  by 
metes  and  bounds,  giving  him,  however,  in  general,  only  legal  pos- 
session thereof,  and  leaving  him  to  obtain  the  actual  possession  by 
ejectment.  After  the  lands  had  been  extended  by  virtue  of  this 
writ,  the  plaintiff  could  have  no  further  execution,  unless,  indeed, 
he  was  evicted  out  of  the  whole;  in  which  case  he  might,  by  statute 
32  Hen.  8,  c.  3  sue  out  a  Scire  Facias  to  obtain  one.  If,  however, 
he  was  evicted  of  part  only,  he  had  no  remedy,  that  case  not  hav- 
ing been  provided  for  in  the  statute.  When  the  plaintiff  had  been, 
by  perception  of  the  rents  and  profits,  satisfied  his  entire  demand, 
the  defendant  might  recover  his  land  again  by  bringing  an  eject- 
ment or  Scire  Facias  ad  Computandum  in  a  Court  of  law,  or  by  appli- 
cation to  a  Court  of  equity,  or  he  might  move  the  Court  out  of 
which  the  execution  issued  to  refer  it  to  the  master  to  take  an  account 
of  the  plaintiff's  receipts,  and  order  him  to  quit  possession,  if  it 
appeared  that  his  demand  was  satisfied. 

None  of  these  writs  of  execution  can  be  sued  out  after  a  year 
and  a  day  from  the  time  of  judgment,  unless  indeed  the  delay  has 
been  caused  by  the  act  of  the  Court,  or  the  consent  of  the  parties. 
In  general,  therefore,  when  that  time  has  elapsed,  it  is  necessary  to 
revive  the  judgment  by  a  writ  of  Scire  Facias,  the  nature  of  which 
will  be  immediately  described. 

It  has  been  just  remarked,  that  after  the  expiration  of  a  year  and 
a  day,  the  plaintiff  cannot  sue  out  any  of  the  above  Writs  of  Execu- 
tion, without  reviving  his  judgment  by  a  writ  of  Scire  Facias  the 
reason  of  which  is,  that,  after  so  long  a  space  of  time,  the  Court 
prima  facie  presumes  his  demand  to  be  satisfied.  We  will  present 
the  reader  with  a  short  account  of  the  proceedings  by  which  the 
revival  of  a  judgment  is  effected. 

A  Scire  Facias  is  a  writ  founded  upon  some  matter  of  record. 
When  brought,  as  it  may  be,  to  repeal  a  patent,  it  is  an  original 
writ,  issuing  out  of  the  Court  of  Chancery;  in  other  cases  it  is  a 
judicial  writ,  and  is  sued  out  of  the  Court  in  which  the  record  on 
which  it  is  founded  happens  to  be. 

It  is  considered  as  the  commencement  of  a  new  action,  and  has, 
therefore,    been    enumerated   at    the    beginning   of   this   treatise, 


IN  EQUITY  399 

among  Actions  Personal.  Among  the  great  variety  of  purposes 
to  which  it  may  be  appHed,  it  is  here  intended  to  consider  only  the 
mode  in  which  it  is  used,  for  the  purpose  of  reviving  a  judgment. 

The  Scire  Facias  states  the  judgment  recovered  by  the  plaintiff, 
and  that  execution  still  remains  to  be  had,  and  commands  the 
sheriff  to  make  known  to  the  defendant  that  he  be  in  Court  at  the 
return  day,  to  shew  why  the  plaintiff  ought  not  to  have  execution. 
After  the  judgment  has  been  revived  by  means  of  this  writ,  the  plain- 
tiff must  take  out  execution  within  a  year  and  a  day  from  the 
revival ;  for  if  he  do  not,  or  if  the  defendant  happen  to  die,  he  cannot 
afterwards  take  out  execution,  but  will  be  forced  to  bring  a  new 
Scire  Facias. 

A  Scire  Facias  upon  a  judgment  is  necessary,  not  only  when  the 
plaintiff  has  delayed  to  take  out  execution  within  a  year  and  a  day, 
but  also  when  any  new  person  is  to  be  benefited  or  charged  by  the 
execution  of  the  judgment;  for  it  is  a  rule  that  executions,  and 
all  other  judicial  writs,  must  pursue  and  correspond  with  the  judg- 
ments on  w^hich  they  are  founded;  therefore,  if  a  judgment  be 
obtained  against  A,  and  he  die,  a  writ  of  execution  cannot  issue 
against  his  executor,  for  he  w^as  no  party  to  the  judgment;  so,  if 
the  plaintiff  obtain  judgment,  and  marry,  execution  cannot  issue  in 
favor  of  her  husband,  for  he  is  not  mentioned  in  the  record.  In 
these  and  similar  cases,  a  writ  of  Scire  Facias  is  sued  out,  which 
recites  the  facts  as  they  have  happened;  the  judgment  given  upon 
that  writ  includes  the  new  party  intended  to  be  benefited  or  charged, 
and  execution  may  be  afterwards  sued  out  upon  that  judgment. 


2.     IN  EQUITY  1 

Blackstone,  Commentaries,  III,  442. 

The  first  commencement  of  a  suit  in  chancery  is  by  preferring  a 
bill  to  the  lord  chancellor,  in  the  style  of  a  petition;  "humbly  com- 
plaining showeth  to  your  lordship  your  orator  A  B,  that,"  etc. 
This  is  in  the  nature  of  a  declaration  at  common  law,  or  a  libel  and 
allegation  in  the  spiritual  courts;  setting  forth  the  circumstances 
of  the  case  at  length,  as  some  fraud,  trust,  or  hardship;  "in  tender 
consideration  whereof"  (which  is  the  usual  language  of  the  bill), 
"and  for  that  your  orator  is  wholly  without  remedy  at  the  common 

^  On  the  history  of  procedure  in  equity  and  its  relation  to  Roman  and  canon- 
law  procedure,  see  Langdell,  Summary  of  Equity  Pleading,   §§  1-52. 


400  ELEMENTS  OF  PROCEDURE 

law,"  relief  is  therefore  prayed  at  the  chancellor's  hands,  and  also 
process  of  subpoena  against  the  defendant,  to  compel  him  to  answer 
upon  oath  to  all  the  matters  charged  in  the  bill.  And,  if  it  be  to 
quiet  the  possession  of  lands,  to  stay  waste,  or  to  stop  proceedings  at 
law,  an  injunction  is  also  prayed,  in  the  nature  of  an  interdictum  by 
the  civil  law,  commanding  the  defendant  to  cease. 

This  bill  must  call  all  necessary  parties,  however  remotely  con- 
cerned in  interest,  before  the  court;  otherwise  no  decree  can  be 
made  to  bind  them;  and  must  be  signed  by  counsel,  as  a  certificate 
of  its  decency  and  propriety.  For  it  must  not  contain  matter  either 
scandalous  or  impertinent:  if  it  does,  the  defendant  may  refuse  to 
answer  it,  till  such  scandal  or  impertinence  is  expunged,  which  is 
done  upon  an  order  to  refer  it  to  one  of  the  officers  of  the  court, 
called  a  master  in  chancery;  of  whom  there  are  in  number  twelve, 
including  the  master  of  the  rolls,  all  of  whom,  so  late  as  the  reign 
of  Queen  Elizabeth,  were  commonly  doctors  of  the  civil  law.  The 
master  is  to  examine  the  propriety  of  the  bill:  and  if  he  reports  it 
scandalous  or  impertinent,  such  matter  must  be  struck  out,  and  the 
defendant  shall  have  his  costs;  which  ought  of  right  to  be  paid 
by  the  counsel  who  signed  the  bill. 

When  a  bill  is  filed  in  the  office  of  the  six  clerks,  (who  originally 
were  all  in  orders;  and  therefore  when  the  constitution  of  the  court 
began  to  alter,  a  law  was  made  to  permit  them  to  marry,)  when, 
I  say,  the  bill  is  thus  filed,  if  an  injunction  be  prayed  therein,  it 
may  be  had  at  various  stages  of  the  cause,  according  to  the  cir- 
cumstances of  the  case.  If  the  bill  be  to  stay  execution  upon  an 
oppressive  judgment,  and  the  defendant  does  not  put  in  his  answer 
within  the  stated  time  allowed  by  the  rules  of  the  court,  an  injunction 
will  issue  of  course;  and,  when  the  answer  comes  in,  the  injunction 
can  only  be  continued  upon  a  sufficient  ground  appearing  from  the 
answer  itself.  But  if  an  injunction  be  wanted  to  stay  waste,  or  other 
injuries  of  an  equally  urgent  nature,  then  upon  the  filing  of  the 
l)ill,  and  a  proper  case  supported  by  affidavits,  the  court  will  grant 
an  injunction  immediately,  to  continue  until  the  defendant  has  put 
in  his  answer,  and  till  the  court  shall  make  some  further  order  con- 
cerning it,  and  when  the  answer  comes  in,  whether  it  shall  then 
be  dissolved  or  continued  till  the  hearing  of  the  cause,  is  deter- 
mined by  the  court  upon  argument,  drawn  from  considering  the 
answer  and  affidavit  together. 

But,  upon  common  bills,  as  soon  as  they  are  filed,  process  of 
stibposna  is  taken  out:  which  is  a  writ  commanding  the  defendant 


IN  EQUITY  401 

to  appear  and  answer  to  the  bill,  on  pain  of  100  /.     But  this  is  not 
all ;  for  if  the  defendant,  on  service  of  the  subpoena,  does  not  appear 
within   the  time   limited   by  the  rules  of  the  court,    and  plead, 
demur,  or  answer  to  the  bill,  he  is  then  said  to  be  in  contempt;  and 
the  respective  processes  of  contempt  are,  in  successive  order,  awarded 
against  him.     The  first  of  which  is  an  attachment,  which  is  a  writ 
in  the  nature  of  a  capias,  directed  to  the  sheriff,  and  commanding 
him  to  attach,  or  take  up,  the  defendant,  and  bring  him  into  court. 
If  the  sheriff  returns  that  the  defendant  non  est  inventus,  then  an 
attachment  with  proclamations  issues,  which,  beside  the  ordinary  form 
of  attachment,  directs  the  sheriff,  that  he  cause  public  proclama- 
tions to  be  made,  throughout  the  country,  to  summon  the  defendant 
upon  his  allegiance,  personally  to  appear  and  answer.     If  this  be  also 
returned  with  a  non  est  inventus,  and  he  still  stands  out  in  con- 
tempt, a  commission  of  rebellion  is  awarded  against  him,  for  not 
obeying  the  king's  proclamations  according  to  his  allegiance;   and 
four  commissioners  therein  named,  or  any  of  them,  are  ordered  to 
attach  him  wheresoever  he  may  be  found  in  Great  Britain,  as  a 
rebel  and  contemner  of  the  king's  laws  and  government,  by  refusing 
to  attend  his  sovereign  when  thereunto  required:    since,  as  was 
before  observed,  matters  of  equity  were  originally  determined  by  the 
king  in  person,  assisted  by  his  council;  though  that  business  is  now 
devolved  upon  his  chancellor.     If  upon  this  commission  of  rebellion 
a  non  est  inventus  is  returned,  the  court  then  sends  a  sergeant-al- 
arms in  quest  of  him;   and  if  he  eludes  the  search  of  the  sergeant 
also,  then  a  sequestration  issues  to  seize  all  his  personal  estate,  and 
the  profits  of  his  real,  and  to  detain  them,  subject  to  the  order  of 
the  court.     Sequestrations  were  first  introduced  by  Sir   Nicholas 
Bacon,  lord  keeper  in  the  reign  of  queen  Elizabeth;   before  which 
the  court  found   some  difficulty  in  enforcing  its  processes  and 
decrees.     After  an  order  for  a  sequestration  issued,  the  plaintiff's 
bill  is  to  be  taken  pro  confesso,  and  a  decree  to  be  made  accordingly. 
So  that  the  sequestration  does  not  seem  to  be  in  the  nature  of 
process  to  bring  in  the  defendant,   but  only  intended  to  enforce 
the   performance  of  the  decree.      Thus   much   if  the  defendant 
absconds. 

If  the  defendant  is  taken  upon  any  of  this  process,  he  is  to  be 
committed  to  the  Fleet  or  other  prison  till  he  puts  in  his  appearance 
or  answer,  or  performs  whatever  else  this  process  is  issued  to  enforce, 
and  also  clears  his  contempts  by  paying  the  costs  which  the 
plaintiff  has  incurred  thereby.     For  the  same  kind  of  process  (which 


402  ELEMENTS  OF  PROCEDURE 

was  also  the  process  of  the  court  of  star-chamber  till  its  dissolution) 
is  issued  out  in  all  sorts  of  contempts  during  the  progress  of  the 
cause  if  the  parties  in  an\'  ]ooint  refuse  or  neglect  to  obe\'  the  order 
of  the  court. 

The  process  against  a  body  corporate  is  by  distringas,  to  distrain 
them  by  their  goods  and  chattels,  rents  and  profits,  till  they  shall 
obe}''  the  summons  or  directions  of  the  court.  And  if  a  peer  is  a 
defendant,  the  lord  chancellor  sends  a  letter  missive  to  him  to  request 
his  appearance,  together  with  a  copy  of  the  bill ;  and  if  he  neglects 
to  appear,  then  he  may  be  served  with  a  suhpcsna;  and  if  he  con- 
tinues still  in  contempt,  a  sequestration  issues  out  immediately 
against  his  lands  and  goods,  without  any  of  the  mesne  process  of 
attachments,  etc.,  which  are  directed  only  against  the  person,  and 
therefore  cannot  affect  a  lord  of  parliament.  The  same  process 
issues  against  a  member  of  the  house  of  commons,  except  that  the 
lord  chancellor  sends  him  no  letter  missive. 

The  ordinary  process  before  mentioned  cannot  be  sued  out  till 
after  the  service  of  the  subpoena,  for  then  the  contempt  begins; 
otherwise  he  is  not  presumed  to  have  notice  of  the  bill ;  and  there- 
fore by  absconding  to  avoid  the  stibpcena  a  defendant  might  have 
eluded  justice  till  the  statute  5  Geo.  II.  c.  25,  which  enacts  that 
where  the  defendant  cannot  be  found  to  be  served  with  process  of 
subpcena,  and  absconds  (as  is  believed)  to  avoid  being  served  there- 
with, a  day  shall  be  appointed  him  to  appear  to  the  bill  of  the  plain- 
tiff, which  is  to  be  inserted  in  the  London  Gazette,  read  in  the  parish 
church  where  the  defendant  last  lived,  and  fixed  up  at  the  royal 
exchange;  and,  if  the  defendant  doth  not  appear  upon  that  day,  the 
bill  shall  be  taken  pro  confesso. 

But  if  the  defendant  appears  regularly,  and  takes  a  copy  of  the 
bill,  he  is  next  to  demur,  plead  or  answer. 

A  demurrer  in  equity  is  nearly  of  the  same  nature  as  a  demurrer 
in  law,  being  an  appeal  to  the  judgment  of  the  court,  whether  the 
defendant  shall  be  bound  to  answer  the  plaintiff's  bill;  as  for  want 
of  sufficient  matter  of  equity  therein  contained;  or  where  the  plain- 
tiff, upon  his  own  showing,  appears  to  have  no  right;  or  where  the 
bill  seeks  a  discovery  of  a  thing  which  may  cause  a  forfeiture  of  any 
kind,  or  may  convict  a  man  of  any  criminal  misbehavior.  For  any 
of  these  causes  a  defendant  may  demur  to  the  bill.  And  if,  on 
demurrer,  the  defendant  prevails,  the  plaintiff's  bill  shall  be  dis- 
missed: if  the  demurrer  be  overruled,  the  defendant  is  ordered  to 
answer. 


IN  EQUITY  403 

A  plea  may  be  either  to  ihc  jurisdiction,  showing  that  the  court 
has  no  cognizance  of  the  cause,  or  to  the  person,  showing  some  dis- 
abihty  in  the  plaintiff,  as  by  outlawry,  excommunication,  and  the 
like:  or  it  is  in  bar;  showing  some  matter  wherefore  the  plaintiff 
can  demand  no  relief,  as  an  act  of  parliament,  a  fine,  a  release,  or  a 
former  decree.  And  the  truth  of  this  plea  the  defendant  is  bound  to 
prove,  if  put  upon  it  by  the  plaintiff.  But  as  bills  are  often  of  a 
complicated  nature,  and  contain  various  matter,  a  man  may  plead  as 
to  part,  demur  as  to  part,  and  answer  to  the  residue.  But  no 
exceptions  to  formal  minutice  in  the  pleadings  will  be  here  allowed ; 
for  the  parties  are  at  liberty,  on  the  discovery  of  any  errors  in  form, 
to  amend  them. 

An  answer  is  the  most  usual  defense  that  is  made  to  a  plaintiff's 
bill.  It  is  given  upon  oath,  or  the  honor  of  a  peer  or  peeress:  but 
where  there  are  amicable  defendants,  their  answer  is  usually  taken 
without  oath,  by  consent  of  the  plaintiff.  This  method  of  proceed- 
ing is  taken  from  the  ecclesiastical  courts,  like  the  rest  of  the  prac- 
tice in  chancery;  for  there,  in  almost  every  case,  the  plaintiff  may 
demand  the  oath  of  his  adversary  in  supply  of  proof.  Formerly 
this  was  done  in  those  courts  with  compurgators,  in  the  manner  of 
our  waging  of  law;  but  this  has  been  long  disused  and  instead  of  it, 
the  present  kind  of  purgation,  by  the  single  oath  of  the  party  him- 
self, was  introduced.  This  oath  was  made  use  of  in  spiritual  courts, 
as  well  in  criminal  cases  of  ecclesiastical  cognizance  as  in  matters  of 
civil  right;  and  it  was  then  usually  denominated  the  oath  ex  o^cio: 
whereof  the  high  commission  court  in  particular  made  a  most 
extravagant  and  illegal  use;  forming  a  court  of  inquisition,  in  which 
all  persons  were  obliged  to  answer  in  cases  of  bare  suspicion,  if  the 
commissioners  thought  proper  to  proceed  against  them  ex  officio  for 
any  supposed  ecclesiastical  enormities.  But  when  the  high  commis- 
sion court  was  abolished  by  statute  16  Car.  I.  c.  11,  this  oath  ex 
officio  was  abolished  with  it,  and  it  is  also  enacted,  by  statute  13 
Car.  II.  St.  1,  c.  12,  "that  it  shall  not  be  lawful  for  any  bishop  or 
ecclesiastical  judge  to  tender  to  any  person  the  oath  ex  officio,  or 
any  other  oath,  whereby  the  party  may  be  charged  or  compelled  to 
confess,  accuse,  or  purge  himself  of  any  criminal  matter."  But  this 
does  not  extend  to  oaths  in  a  civil  suit;  and  therefore  it  is  still  the 
practice,  both  in  the  spiritual  courts  and  in  equity,  to  demand  the 
personal  answer  of  the  party  himself  upon  oath.  Yet  if  in  the  bill 
any  question  be  put  that  tends  to  the  discovery  of  any  crime,  the 
defendant  may  thereupon  demur,  as  was  before  observed,  and  may 
refuse  to  answer. 


404  ELEMENTS  OF  PROCEDURE 

If  the  defendant  lives  within  twenty  miles  of  London,  he  must 
be  sworn  before  one  of  the  masters  of  the  court :  if  farther  off,  there 
may  be  a  dedinms  potestatem,  or  commission  to  take  his  answer  in 
the  country,  where  the  commissioners  administer  him  the  usual 
oath;  and  then,  the  answer  being  sealed  up,  either  one  of  the  com- 
missioners carries  it  up  to  the  court,  or  it  is  sent  by  a  messenger, 
who  swears  he  received  it  from  one  of  the  commissioners,  and  that 
the  same  has  not  been  opened  or  altered  since  he  received  it.  An 
answer  must  be  signed  by  counsel,  and  must  cither  deny  or  confess 
all  the  material  parts  of  the  bill;  or  it  may  confess  and  avoid,  that 
is,  justify  or  palliate  the  facts.  If  one  of  these  is  not  done,  the 
answer  may  be  excepted  to  for  insufificiency,  and  the  defendant  be 
compelled  to  put  in  a  more  sufificient  answer.  A  defendant  cannot 
pray  anything  in  this  his  answer  but  to  be  dismissed  the  court; 
if  he  has  any  relief  to  pray  against  the  plaintiff,  he  must  do  it  by 
an  original  bill  of  his  own,  which  is  called  a  cross-hill. 

After  ansv/er  put  in,  the  plaintiff  upon  payment  of  costs  may 
amend  his  bill,  either  by  adding  new  parties  or  new  matter,  or  both, 
upon  the  new  lights  given  him  by  the  defendant ;  and  the  defendant 
is  obliged  to  answer  afresh  to  such  amended  bill.  But  this  must  be 
before  the  plaintiff  has  replied  to  the  defendant's  answer,  whereby 
the  cause  is  at  issue;  for  afterwards,  if  new  matter  arises,  which 
did  not  exist  before,  he  must  set  it  forth  by  a  supplemental-hill. 
There  may  be  also  a  bill  of  revivor  when  the  suit  is  abated  by  the 
death  of  any  of  the  parties;  in  order  to  set  the  proceedings  again  in 
motion,  without  which  they  remain  at  a  stand.  And  there  is  like- 
wise a  bill  of  interpleader;  where  a  person  who  owes  a  debt  or  rent 
to  one  of  the  parties  in  suit,  but,  till  the  determination  of  it,  he 
knows  not  to  which,  desires  that  they  may  interplead,  that  he  may 
be  safe  in  the  payment.  In  this  last  case  it  is  usual  to  order  the 
money  to  be  paid  into  court  for  the  benefit  of  such  of  the  parties  to 
whom  upon  hearing  the  court  shall  decree  it  to  be  due.  But  this 
depends  upon  circumstances;  and  the  plaintiff  must  also  annex  an 
affidavit  to  his  bill,  swearing  that  he  does  not  collude  with  either 
of  the  parties. 

If  the  plaintiff  finds  sufficient  matter  confessed  in  the  defendant's 
answer  to  ground  a  decree  upon,  he  may  proceed  to  tiie  hearing  of 
the  cause  upon  bill  and  answer  only.  But  in  that  case  he  must 
take  the  defendant's  answer  to  be  true,  in  every  point.  Otherwise 
the  course  is  for  the  plaintiff  to  reply  generally  to  the  answer, 
averring    his    bill    to    be    true,    certain,    and    sufficient,    and    the 


IN  EQUITY  405 

defendant's  answer  to  be  directly  the  reverse;  which  he  is  ready  to 
prove  as  the  court  shall  award ;  upon  which  the  defendant  rejoins, 
averring  the  like  on  his  side:  which  is  joining  issue  upon  the 
facts  in  dispute.     To  prove  which  facts  is  the  next  concern. 

This  is  done  by  examination  of  witnesses,  and  taking  their 
depositions  in  writing,  according  to  the  manner  of  civil  law.  And 
for  that  purpose  interrogatories  are  framed,  or  questions  in  writing; 
which,  and  which  only,  are  to  be  proposed  to,  and  asked  of,  the 
witnesses  in  the  cause.  These  interrogatories  must  be  short  and 
pertinent:  not  leading  ones  (as,  "did  not  you  see  this?"  or,  "did  not 
you  hear  that?") ;  for  if  they  be  such,  the  depositions  taken  thereon 
will  be  suppressed  and  not  suffered  to  be  read.  For  the  purposes  of 
examining  witnesses  in  or  near  London,  there  is  an  examiner's  office 
appointed;  but  for  such  as  live  in  the  country,  a  commission  to 
examine  witnesses  is  usually  granted  to  four  commissioners,  two 
named  of  each  side,  or  any  three  or  two  of  them,  to  take  the  deposi- 
tions there.  And  if  the  witnesses  reside  beyond  sea,  a  commission 
may  be  had  to  examine  them  there  upon  their  own  oaths,  and  (if 
foreigners)  upon  the  oaths  of  skilful  interpreters.  And  it  hath  been 
established  that  the  depositions  of  a  heathen  who  believes  in  the 
Supreme  Being,  taken  by  commission  in  the  most  solemn  manner 
according  to  the  custom  of  his  own  country,  may  be  read  in  evi- 
dence. 

The  commissioners  are  sworn  to  take  the  examinations  truly  and 
without  partiality,  and  not  to  divulge  them  until  published  in  the 
court  of  chancery ;  and  their  clerks  are  also  sworn  to  secrecy.  The 
witnesses  are  compellable  by  process  of  subpoena,  as  in  the  courts 
of  common  law,  to  appear  and  submit  to  examination.  And  when 
their  depositions  are  taken,  they  are  transmitted  to  the  court  with 
the  same  care  that  the  answer  of  a  defendant  is  sent. 

If  witnesses  to  a  disputable  fact  are  old  and  infirm,  it  is  very 
usual  to  file  a  bill  to  perpetuate  the  testimony  of  those  witnesses, 
although  no  suit  is  depending;  for,  it  may  be,  a  man's  antagonist 
only  waits  for  the  death  of  some  of  them  to  begin  his  suit.  This  is 
most  frequent  when  lands  are  devised  by  will  away  from  the  heir  at 
law,  and  the  devisee,  in  order  to  perpetuate  the  testimony  of  the  wit- 
nesses to  such  will,  exhibits  a  bill  in  chancery  against  the  heir,  and 
sets  forth  the  will  verbatim  therein,  suggesting  that  the  heir  is 
inclined  to  dispute  its  validity:  and  then,  the  defendant  having 
answered,  they  proceed  to  issue  as  in  other  cases,  and  examine  the 
witnesses  to  the  will;   after  which  the  cause  is  at  an  end,  without 


40G  ELEMENTS  OF  PROCEDURE 

proceeding  to  any  decree,  no  relief  being  prayed  by  the  bill:  but 
the  heir  is  entitled  to  his  costs,  even  though  he  contests  the  will. 
This  is  what  is  usually  meant  by  proving  a  will  in  chancery. 

When  all  the  witnesses  are  examined,  then,  and  not  before,  the 
depositions  may  be  published,  by  a  rule  to  pass  publication;  after 
which  they  are  open  for  the  inspection  of  all  the  parties,  and  copies 
may  be  taken  of  them.  The  cause  is  then  ripe  to  be  set  down  for 
hearing,  which  may  be  done  at  the  procurement  of  the  plaintiff,  or 
defendant,  before  either  the  lord  chancellor  or  the  master  of  the 
rolls,  according  to  the  discretion  of  the  clerk  in  court,  regulated 
by  the  nature  and  importance  of  the  suit,  and  the  arrear  of  causes 
depending  before  each  of  them  respectively.  Concerning  the 
authority  of  the  master  of  the  rolls,  to  hear  and  determine  causes, 
and  his  general  power  in  the  court  of  chancery,  there  were  (not 
many  years  since)  divers  questions,  and  disputes  very  warmly 
agitated ;  to  quiet  which,  it  was  declared  by  statute  3  Geo.  II.  c.  30, 
that  all  orders  and  decrees  by  him  made,  except  such  as  by  the 
course  of  the  court  were  appropriated  to  the  great  seal  alone,  should 
be  deemed  to  be  valid;  subject,  nevertheless  to  be  discharged  or 
altered  by  the  lord  chancellor,  and  so  as  they  shall  not  be  enrolled, 
till  the  same  are  signed  by  his  lordship.  Either  party  may  be  sub- 
pcenaed  to  hear  judgment  on  the  day  so  fixed  for  the  hearing;  and 
then,  if  the  plaintiff  does  not  attend,  his  bill  is  dismissed  with 
costs;  or,  if  the  defendant  makes  default,  a  decree  will  be  made 
against  him,  which  will  be  final,  unless  he  pays  the  plaintiff's  cost  of 
attendance  and  shows  good  cause  to  the  "contrary  on  a  day  appointed 
by  the  court.  A  plaintiff's  bill  may  also  at  any  time  be  dismissed 
for  want  of  prosecution,  which  is  in  the  nature  of  a  non-suit  at 
law,  if  he  suffers  three  terms  to  elapse  without  moving  forward  in 
the  cause. 

When  there  are  cross-causes,  on  a  cross-bill  filed  by  the  defendant 
against  the  plaintiff  in  the  original  cause,  they  are  generally  con- 
trived to  be  brought  on  together,  that  the  same  hearing  and  the 
same  decree  may  serve  for  both  of  them.  The  method  of  hearing 
causes  in  court  is  usually  this.  The  parties  on  both  sides  appearing 
by  their  counsel,  the  plaintiff's  bill  is  first  opened,  or  briefly  abridged, 
and  the  defendant's  answer  also,  by  the  junior  counsel  on  each  side; 
after  which  the  plaintiff's  leading  counsel  states  the  case  and  the 
matters  in  issue,  and  the  points  of  equity  arising  therefrom;  and 
then  such  depositions  as  are  called  for  by  the  plaintiff  are  read  by 
one  of  the  six  clerks,  and  the  plaintiff  may  also  read  such  part  of 


IN  EQUITY  407 

the  defendant's  answer  as  he  thinks  material  or  convenient:  and 
after  this,  the  rest  of  the  counsel  for  the  plaintiff  make  their  obser- 
vations and  arguments.  Then  the  defendant's  counsel  go  through 
the  same  process  for  him,  except  that  they  may  not  read  any  part 
of  his  answer;  and  the  counsel  for  the  plaintiff  are  heard  in  reply. 
When  all  are  heard,  the  court  pronounces  the  decree,  adjusting 
every  point  in  debate  according  to  equity  and  good  conscience; 
which  decree  being  usually  very  long,  the  minutes  of  it  are  taken 
down,  and  read  openly  in  court  by  the  registrar.  The  matter  of 
costs  to  be  given  to  either  party  is  not  here  held  to  be  a  point  of 
right,  but  merely  discretionary  (by  the  statute  17  Ric.  II.  c.  6) 
according  to  the  circumstances  of  the  case,  as  they  appear  more  or 
less  favorable  to  the  party  vanquished.  And  yet  the  statute  15 
Hen.  VI.  c.  4  seems  expressly  to  direct,  that  as  well  damages  as  costs 
shall  be  given  to  the  defendant,  if  wrongfully  vexed  in  this  court. 

The  chancellor's  decree  is  either  interlocutory  or  final.  It  very 
seldom  happens  that  the  first  decree  can  be  final,  or  conclude  the 
cause;  for,  if  any  matter  of  fact  is  strongly  controverted,  this  court 
is  so  sensible  of  the  deficiency  of  trial  by  written  depositions,  that 
it  will  not  bind  the  parties  thereby,  but  usually  directs  the  matter  to 
be  tried  by  jury;  especially  such  important  facts  as  the  validity  of 
a  will,  or  whether  A  is  the  heir  at  law  of  B,  or  the  existence  of  a 
modus  decimandi,  or  real  and  immemorial  composition  for  tithes. 
But,  as  no  jury  can  be  summoned  to  attend  this  court,  the  fact  is 
usually  directed  to  be  tried  at  the  bar  of  the  court  of  king's  bench, 
or  at  the  assizes,  upon  a  feigned  issue.  For  (in  order  to  bring  it 
there,  and  have  the  point  in  dispute,  and  that  only,  put  in  issue)  an 
action  is  brought,  wherein  the  plaintiff  by  a  fiction  declares  that  he 
laid  a  wager  of  5  /.  with  the  defendant  that  A  was  an  heir  at  law  to 
B;  and  then  avers  that  he  is  so;  and  therefore  demands  the  5  /. 
The  defendant  admits  the  feigned  wager,  but  avers  that  A  is  not 
the  heir  to  B;  and  thereupon  that  issue  is  joined,  which  is  directed 
out  of  chancery  to  be  tried;  and  thus  the  verdict  of  the  jurors  at 
law  determines  the  fact  in  the  court  of  equity.  These  feigned 
issues  seem  borrowed  from  the  sponsio  judicialis  of  the  Romans; 
and  are  also  frequently  used  in  the  courts  of  law,  by  consent  of  the 
parties,  to  determine  some  disputed  rights  without  the  formality 
of  pleading,  and  thereby  to  save  much  time  and  expense  in  the 
decision  of  a  cause. 

So,  likewise,  if  a  question  of  mere  law  arises  in  the  course  of  a 
cause,  as  whether  by  the  words  of  a  will  an  estate  for  life  or  in  tail 


408  ELEMENTS  OF  PROCEDURE 

is  created,  or  whether  a  future  interest  devised  by  a  testator  shall 
operate  as  a  remainder  or  an  executory  devise,  it  is  the  practice  of 
this  court  to  refer  it  to  the  opinion  of  the  judges  of  the  court  of 
king's  bench  or  common  pleas,  upon  a  case  stated  for  that  purpose, 
wherein  all  the  material  facts  are  admitted,  and  the  point  of  law  is 
submitted  to  their  decision;  who  thereupon  hear  it  solemnly  argued 
by  counsel  on  both  sides,  and  certify  their  opinion  to  the  chancellor. 
And  upon  such  certificate  the  decree  is  usually  founded. 

Another  thing  also  retards  the  completion  of  decrees.  FrequentK- 
long  accounts  are  to  be  settled,  encumbrances  and  debts  to  be 
inquired  into,  and  a  hundred  little  facts  to  be  cleared  up,  before  a 
decree  can  do  full  and  sufficient  justice.  These  matters  are  always, 
by  the  decree  on  the  first  hearing,  referred  to  a  master  in  chancery 
to  examine,  which  examinations  frequently  last  for  years;  and  then 
he  is  to  report  the  fact,  as  it  appears  to  him,  to  the  court.  This 
report  may  be  excepted  to,  disproved,  and  overruled ;  or  otherwise 
is  confirmed,  and  made  absolute,  by  order  of  the  court. 

When  all  issues  are  tried  and  settled,  and  all  references  to  the 
master  ended,  the  cause  is  again  brought  to  hearing  upon  the 
matters  of  equity  reserved,  and  a  final  decree  is  made;  the  per- 
formance of  which  is  enforced  (if  necessary)  by  commitment  of  the 
person,  or  sequestration  of  the  party's  estate.  And  if  by  this  decree 
either  party  thinks  himself  aggrieved,  he  may  petition  the  chan- 
cellor for  a  rehearing;  whether  it  was  heard  before  his  lordship,  or 
any  of  the  judges  sitting  for  him,  or  before  the  master  of  the  rolls. 
For,  w^hoever  may  have  heard  the  cause,  it  is  the  chancellor's  decree, 
and  must  be  signed  by  him  before  it  is  enrolled;  which  is  done  of 
course  unless  a  rehearing  is  desired.  Every  petition  for  a  rehear- 
ing must  be  signed  by  two  counsel  of  character,  usually  such  as 
have  been  concerned  in  the  cause,  certifying  that  they  apprehend 
the  cause  is  proper  to  be  reheard.  And  upon  the  rehearing,  all 
the  evidence  taken  in  the  cause,  whether  read  before  or  not,  is  now 
admitted  to  be  read;  because  it  is  the  decree  of  the  chancellor 
himself,  who  now  only  sits  to  hear  reasons  why  it  should  not  be 
enrolled  and  perfected;  at  which  time  all  omissions  of  either  evi- 
dence or  argument  may  be  supplied.  But,  after  the  decree  is  once 
signed  and  enrolled,  it  cannot  be  reheard  or  rectified  but  by  bill  of 
review,  or  by  appeal  to  the  house  of  lords. 

A  bill  of  review  may  be  had  upon  apparent  error  in  judgment 
appearing  on  the  face  of  the  decree;  or,  by  special  leave  of  the 
court,  ui)on  oath  made  of  the  discovery  of  new  matter  or  evidence, 


IN  EQUITY  409 

which  could  not  possibly  be  had  or  used  at  the  time  when  the 
decree  passed.  But  no  new  evidence  or  matter  then  in  the  knowl- 
edge of  the  parties,  and  which  might  have  been  used  before,  shall  be 
a  sufficient  ground  for  a  bill  of  review. 

An  appeal  to  parliament,  that  is,  to  the  house  of  lords,  is  the 
dernier  ressort  of  the  subject  who  thinks  himself  aggrieved  by  an 
interlocutory  order  or  final  determination  in  this  court;  and  it  is 
effected  by  petition  to  the  house  of  peers,  and  not  by  writ  of  error, 
as  upon  judgments  at  common  law.  This  jurisdiction  is  said  to  have 
begun  in  18  Jac,  I.,  and  it  is  certain  that  the  first  petition,  which 
appears  in  the  records  of  parliament,  was  preferred  in  that  year; 
and  that  the  first  which  was  heard  and  determined  (though  the 
name  of  appeal  was  then  a  novelty)  was  presented  a  few  months 
after ;  both  levelled  against  the  lord  chancellor  Bacon  for  corruption 
and  other  misbehavior.  It  was  afterwards  warmly  controverted  by 
the  house  of  commons  in  the  reign  of  Charles  the  Second.  But  this 
dispute  is  now  at  rest :  it  being  obvious  to  the  reason  of  all  mankind, 
that,  w^hen  the  courts  of  equity  became  principal  tribunals  for  de- 
ciding causes  of  property,  a  revision  of  their  decrees  (by  way  of 
appeal)  became  equally  necessary  as  a  writ  of  error  from  the  judg- 
ment of  a  court  of  law.  And  upon  the  same  principle,  from  decrees 
of  the  chancellor  relating  to  the  commissioners  for  the  dissolution 
of  chauntries,  etc.,  under  the  statute  37  Hen.  VIII.  c.  4,  (as  well 
as  for  charitable  uses  under  the  statute  43  Eliz.  c.  4.)  an  appeal 
to  the  king  in  parliament  was  always  unquestionably  allowed. 
But  no  new  evidence  is  admitted  in  the  house  of  lords  upon  any 
account ;  this  being  a  distinct  jurisdiction :  which  differs  it  very  con- 
siderably from  those  instances,  wherein  the  same  jurisdiction  revises 
and  corrects  its  own  acts,  as  in  rehearings  and  bills  of  review.  For 
it  is  a  practice  unknown  to  our  law,  (though  constantly  followed 
in  the  spiritual  courts,)  when  a  superior  court  is  reviewing  the 
sentence  of  an  inferior,  to  examine  the  justice  of  the  former  decree 
by  evidence  that  was  never  produced  below.  And  thus  much  for 
the  general  method  of  proceeding  in  the  courts  of  equity. 


410  RIGHTS 


CHAPTER  Vni 
RIGHTS  ' 

Justice  requires  a  harmonizing  or  a  balancing  of  many  conflicting  interests  so 
as  to  permit  the  fullest  development  and  exercise  of  human  powers  and  capacities 
with  the  least  injury  to  the  several  interests.  In  general,  the  interests  which  a 
legal  system  ought  thus  to  harmonize  or  balance  are  social,  public,  and  private. 
Social  interests  are  maintained  chiefly  and  until  very  recent  times  almost  entirely 
by  the  criminal  law.  Public  interests  are  maintained  in  the  Anglo-American 
legal  system  primarily  by  private  actions  given  to  the  state  or  to  public  officers 
on  behalf  of  the  state,  on  the  analogy  of  private  rights,  by  private  actions  allowed 
to  individuals,  by  the  so-called  prerogative  writs,  such  as  mandamus  and  quo 
•warranto,  and  by  the  criminal  law.  Private  interests  are  maint  ined  by  rights, 
powers,  and  privileges  conferred  upon  individuals  and  vindicated  by  private 
actions  in  the  courts.  Rightly  or  wrongly,  our  Anglo-American  legal  system  is 
intensely  individualist.  It  conceives  that  a  paramount  public  and  social  interest 
is  in  the  securing  to  each  individual  his  private  rights,  that  is,  those  capacities 
of  action  and  powers  of  influencing  others  through  the  force  of  the  state  which 
are  requisite  to  secure  and  protect  certain  spheres  of  interest  upon  which  his  indi- 
vidual activities  depend  or  about  which  they  center. 

Paulsen,  Ethics  (Thilly's    translation)    633-637. 

The  legal  spheres,  as  we  noticed  before,  correspond  to  the  great 

spheres  of  action  or  the  circles  of  interests,  for  the  protection  of 

which  the  legal  order  exists.     The  first  and  narrowest  sphere  of 

interests  is  that  which  we  may  embrace  under  the  heading,  body  and 

life.     Encroachments  upon  this  domain  are  made  by   homicide, 

disfigurement,  assault  and  battery,  and  all  attacks  upon  life  and 

health.     Protection  against  such  crimes  forms  an  important  part  of 

all  law;  in  the  oldest  legal  systems  it  occupies  the  most  conspicuous 

place.     The  laws  of  the  ancient  Germanic  races,   for    example, 

consist  largely  in  the  determination  of  the  amount  of  blood-money 

to  be  paid  for  every  kind  of  injury  against  body  and  life.     If  we 

mean  by  encroachments  upon  this  domain  only  physical  assaults, 

then  the  law  seems  to  leave  no  room  for  infractions.     In  fact 

> 

'  Holland,  Jurispruclence,  Chaps.  VII,  VIII;  Markby,  Elements  of  Law,  §§  146- 
158;  Salmond,  Jurisprudence,  §§70-73;  Korkunov,  General  Theory  of  Law 
(Hastings'  translation)  §  29. 


RIGHTS  411 

however,  every  hurt  is  directed  against  body  and  Hfe,  and  so  bound- 
less opportunity  is  offered  for  unpunishable  offences  against  others: 
such  as  causing  them  annoyance,  arousing  their  anger  or  grief, 
exploiting  and  defrauding  them.  This  is  what  the  Gospel  has  to 
say  in  the  matter:    "Whosoever  hateth  his  brother  is  a  murderer." 

A  second  sphere  of  interests  is  bounded  by  the  family,  the  ex- 
panded individual  life.  Encroachments  upon  this  domain  are 
made  by  adultery,  abduction,  substitution  of  children,  seduction, 
and  similar  crimes.  The  more  pronounced  and  tangible  forms  of 
such  oflfences  are  reached  by  the  criminal  law ;  the  more  subtle  forms 
of  disturbing  the  peace  of  the  home  and  the  family,  tale-bearing, 
intriguing,  by  which  husbands  are  estranged  from  their  wives  and 
parents  from  their  children,  do  not  come  within  the  reach  of  the  law; 
think  of  Othello's  friend,  lago! 

A  third  sphere  of  interests  is  defined  by  property,  which  includes 
the  sum-total  of  external  means  of  self-preservation  and  voluntary 
action.  Encroachments  upon  this  field  are  made  by  robbery,  theft, 
blackmail,  fraud,  forgery,  embezzlement,  usury,  and  all  such 
offences  as  come  under  the  head  of  crimes  against  property.  Here 
again  the  criminal  law  cannot  reach  the  more  subtle  methods  by 
which  property  is  illegitimately  acquired  at  others'  expense.  In 
spite  of  the  efforts  of  the  law  to  punish  the  offenders,  the  inventive 
genius  of  the  lower  and  higher  criminal  classes  always  outwits  the 
law. 

As  a  fourth  sphere  of  interests  may  be  mentioned  honor,  or  ideal 
self-preservation.  Encroachments  upon  this  domain  are  made  by 
insults,  false  reports,  slander.  In  these  cases,  much  more  than  in 
the  preceding  ones,  the  criminal  law  can  reach  only  the  more 
flagrant  and  careless,  but  not  the  more  subtle  and  shrewd  violations, 
which  are  not  the  less  injurious.  There  are  a  thousand  anonymous, 
indirect,  undiscoverable  ways  of  blasting  a  man's  reputation  for 
which  a  penal  formula  never  can  be  found. 

The  fifth  sphere  of  interests  is  the  free  exercise  of  volition. 
Attacks  upon  the  liberty  of  others  are  made  by  kidnapping,  illegal 
arrests,  compulsion,  threats.  Breaches  of  domestic  peace  may  also 
be  placed  in  this  list.  In  the  primitive  legal  codes  protection  was 
afforded  against  this  class  of  offences  by  threatening  with  punish- 
ment every  one  who  made  a  slave  of  a  fellow,  contrary  to  the  law. 
Legal  slavery  and  serfdom  no  longer  exist  among  us.  Yet  even  in 
our  day  forms  of  dependence  are  not  wanting  which  closely 
resemble  actual  slavery.     We  may  regard  the   laws   which   have 


412  RIGHTS 

been  enacted  for  the  protection  of  labor  during  the  last  half  century 
as  a  continuation  of  the  legislation  in  defense  of  individual  liberty 
against  new  forms  of  slavery.  No  one  enjoys  freedom  in  the  full 
sense  of  the  term  whose  life  and  strength  are  utilized  merely  as 
means  to  others'  ends.  Hence,  whoever  uses  men  in  this  way,  or 
attempts  to  reduce  them  to  such  a  state  or  to  keep  them  in  it,  acts 
contrary  to  the  law  of  justice,  which  demands  that  the  freedom 
of  others  be  respected. 

Finally,  we  may  also  add  a  sixth  sphere  of  interests,  which  is 
closely  connected  with  the  fourth  and  fifth,  the  spiritual  life,  which 
expresses  itself  in  convictions,  views,  beliefs,  religion,  morality, 
and  habits  of  life.  Persecutions,  aspersions,  open  or  concealed 
s'igns  of  contempt,  scornful  neglect,  importunate  attempts  at  con- 
version, are  some  of  the  forms  of  interference  with  this  field.  The 
inner  state  which  tends  to  such  forms  of  injustice,  we  are  in  the 
habit  of  calling  intolerance.  It  has  its  natural  roots  partly  in  man's 
dependence  and  need  of  society,  the  gregarious  instinct,  partly  in 
his  arrogance  and  the  conceited  belief  in  his  own  infallibility.  The 
majority  of  men  are  sure  of  their  ground  only  when  their  fellows 
are  going  in  the  same  direction,  thinking  the  same  thoughts.  Hence, 
they  demand  that  everybody  accommodate  himself  to  them. 
Deviations  from  the  common  rule  are  regarded  as  disturbances 
and  give  offence,  and  hence  all  means  are  employed  that  seem 
suited  either  to  bring  the  dissenter  into  harmony  with  his  fellows 
or  to  remove  him  from  view,  and  to  deter  others  from  imitating 
his  example.  Arrogance  has  the  same  effect  upon  the  leaders  of 
the  masses.  They  regard  it  as  an  intolerable  presumption  on  the 
part  of  an  individual  to  refuse  to  follow  their  leadership,  for  does 
he  not  thereby  tacitly  accuse  the  appointed  authorities  of  error? 
What  would  happen  if  everybody  were  to  dare  such  a  thing?  An 
example  must  therefore  be  made.  The  opposite  habit  of  mind  is 
called  toleration;  liberality  of  mind  would  perhaps  be  a  more  appro- 
priate term.  A  liberal  education  shows  itself  in  the  ability  to  under- 
stand and  to  recognize  what  is  strange  and  different.  It  is  acquired 
only  by  frequent  contact  with  the  extraordinary,  be  it  personal, 
literary,  or  historical.  In  narrow  spheres  the  mind  remains  narrow; 
nations,  classes,  scholastic  sects,  religious  communities,  which  live 
for  themselves  and  scarcely  come  in  contact  with  the  customs  and 
opinions  of  others,  are  universally  conspicuous  for  their  intolerance. 

This  is  a  field  in  which  the  law  is  most  powerless.    It  can  reach 
\'iolations  only  when  they  can  be  construed  as  libels,  which  is 


RIGHTS  413 

not  always  the  case.  And  yet  such  offences  may  cause  serious 
injury;  even  mere  intrusive  attempts  at  conversion  ultimately 
become  unbearable.  The  law  is  powerless  against  them.  Never- 
theless, toleration  is  not  a  favor,  but  a  right:  morally,  every  one 
has  the  right  to  demand  that  we  do  not  interfere  with  his  habits, 
his  convictions,  and  his  thoughts  if  he  is  determined  to  adhere  to 
them;  and  it  is  a  duty  to  respect  this  right,  provided,  of  course, 
the  individual's  behavior  does  not  violate  the  rights  of  others. 
I  have  the  right  to  win  over  others  to  my  ways  of  thinking  and 
acting,  only  by  example  and  by  means  of  persuasion,  and  in  the 
latter  case  I  must  respect  the  rights  of  others  to  their  own  opin- 
ions.—  The  difficulty  arises  with  the  question :  To  what  extent 
have  tastes,  habits,  assertions,  opinions  of  which  we  cannot  mor- 
ally approve,  a  claim  to  toleration,  that  is,  to  what  extent  shall 
we  concede  to  them  equal  rights?  It  is  obvious  that  I  have  not 
the  right  to  censure  or  to  express  my  contempt  for  every  state- 
ment which  cannot  be  justified  morally,  or  which  does  violence  to 
my  moral  sense  or  taste.  And  it  is  equally  obvious  that  I  am  not 
bound  in  duty  to  allow  everything  to  pass  without  contradiction: 
it  may  be  in  the  highest  measure  justifiable  to  express  my  con- 
tempt openly.  Here  again  no  formula  can  be  given  which  will 
enable  us  to  decide  each  particular  case. 

The  law  maintains  and  protects  the  foregoing  interests  by  recognizing  or  creat- 
ing certain  duties,  rights,  powers,  and  privileges.  Duties  may  be  moral  or  legal. 
A  moral  duty  exists  where  one  is  bound  to  do  or  not  to  do  something  because  of 
some  interest,  social,  public,  or  private,  recognized  by  the  moral  sentiment  of  the 
community.  A  legal  duty  exists  where  one  is  bound  to  do  or  not  to  do  something 
because  of  some  interest,  social  public,  or  private,  which  the  law  undertakes  to 
maintain  through  the  power  of  the  state  invoked  in  judicial  proceedings.  For 
the  most  part  legal  duties  are  correlative  to  legal  rights,  public  or  private.  But 
there  are  many  absolute  duties,  that  is,  duties  imposed  for  the  maintenance  of 
purely  social  interests  without  regard  to  any  corresponding  public  or  private 
right.  These  absolute  duties  are  enforced  by  the  criminal  law.  The  chief  means 
which  the  law  adopts,  however,  in  order  to  attain  its  end,  is  the  recognition  or 
definition  of  certain  capacities  in  persons  of  influencing  the  actions  of  others. 
The  courts  give  effect  to  these  capacities  of  influence  by  protecting  those  in  whom 
they  reside  in  the  exercise  of  them,  or  by  enforcing  them  against  those  against 
whom  they  are  conferred,  or  by  vindicating  them  by  some  form  of  redress  when 
they  are  interfered  with.  These  capacities  of  influence  are  called  rights.  If  the 
capacity  which  one  has  of  influencing  the  acts  of  others  because  of  some  inteiest 
which  requires  others  to  act  or  not  to  act  in  a  particular  way,  has  behind  it  simply 
the  moral  sentiment  of  the  community,  we  speak  of  it  as  a  moral  right.  When 
such  capacity  is  recognized  or  created  by  law  and  the  power  of  the  state  may  be 
invoked  through  the  courts  in  order  to  give  efi^ect  to  it,  we  speak  of  it  as  a  legal 


414  RIGHTS 

right.  When  we  think  that  such  a  capacity  ought  to  exist  and  ought  to  be 
recognized,  and  made  effective  by  law,  we  speak  of  a  "natural"  right. 

Corresponding  to  every  right  there  is  a  duty,  moral  or  legal,  according  as  the 
right  is  moral  or  legal.  The  person  to  whom  the  capacity  of  influencing  others 
for  the  security  of  some  interest  is  given,  or  in  whom  it  is  recognized,  has  a  right; 
the  person  or  persons  upon  whom  that  influence  may  be  exerted  have  duties. 
A  power  is  a  capacity  conferred  or  recognized  by  law  of  creating,  divesting,  or 
altering  rights  and  so  creating  or  altering  duties.  It  may  be  conferred  by  the  law 
directly  or  indirectly  through  recognizing  a  power  conferred  by  one  person  upon 
another.  Thus,  an  agent  has  a  power  of  binding  his  principal  by  acts  within 
the  apparent  scope  of  his  authority,  that  is,  of  creating  rights  in  others  against 
his  principal  and  corresponding  duties  in  the  principal,  which  is  conferred  upon 
all  agents  by  law.  But  he  has  also  a  power  of  binding  the  principal  by  acts  within 
the  scope  of  the  authority  given  by  the  principal  which  the  law  confers  indirectly 
by  recognizing  such  capacities  in  agents  when  principals  have  entrusted  them 
therewith. 

A  privilege  is  an  immunity  from  liability  for  what,  but  for  the  privilege,  would 
be  a  violation  of  duty.  Privileges  may  be  created  directly  by  the  law  because  of 
some  social  or  public  interest  which  may  be  maintained  best  by  exemption  of 
certain  persons  or  certain  classes  of  acts  or  acts  on  certain  occasions  from  the 
operation  of  general  rules  of  law.  For  example,  what  would  ordinarily  be  action- 
able as  a  libel  because  of  its  effect  upon  the  reputation  of  the  subject  of  the  writing, 
may  be  privileged  and  hence  involve  no  liability  when  written  in  criticism  of  the 
official  acts  of  a  public  officer,  since  the  public  interest  in  free  criticism  in  such 
cases  requires  a  deviation  from  the  general  rule.  Privileges  may  be  conferred 
also  by  individuals  whose  rights  are  concerned,  and  in  such  cases  are  usually 
afforded  legal  recognition.  An  example  may  be  seen  in  the  case  of  a  license  by 
the  owner  of  land,  as,  for  instance,  leave  to  another  to  hunt  thereon. 

Austin,  Jurisprudence  (3  Ed.),  I,  407. 

Duty  is  the  basis  of  Right.  That  is  to  say,  parties  who  have 
rights,  or  parties  who  are  invested  with  rights,  have  rights  to  acts, 
or  forbearances  enjoined  by  the  sovereign  upon  other  parties. 

Or  (in  other  words)  parties  invested  with  rights  are  invested 
with  rights,  because  other  parties  are  bound  by  the  command 
of  the  sovereign,  to  do  or  perform  acts;  or  to  forbear  or  abstain 
from  acts. 

In  short,  the  term  "right"  and  the  term  "relative  duty"  signify  the 
same  notion  considered  from  different  aspects.  Every  right  sup- 
poses distinct  parties:  A  party  commanded  by  the  sovereign  to 
do  or  to  forbear,  and  a  party  towards  whom  he  is  commanded  to 
do  or  to  forbear.  The  party  to  whom  the  sovereign  expresses  or 
intimates  the  command,  is  said  to  He  under  a  duty:  that  is  to  say, 
a  relative  duty.  The  party  towards  whom  he  is  commanded  to  do 
or  to  forbear,  is  said  to  have  a  right  to  the  acts  or  forbearances  in 
question. 


RIGHTS  415 

Holland,  Jurisprudence,  chap.  7. 

What  then  is  a  "legal  right?"    But  first,  what  is  a  right  generally? 

It  is  one  man's  capacity  of  influencing  the  acts  of  another  by 
means,  not  of  his  own  strength,  hut  of  the  opinion  or  the  force  of 
society.  When  a  man  is  said  to  have  a  right  to  do  anything,  or  over 
anything,  or  to  be  treated  in  a  particular  manner,  what  is  meant 
is  that  public  opinion  would  see  him  do  the  act,  or  make  use  of 
the  thing,  or  be  treated  in  that  particular  way,  with  approba- 
tion, or  at  least  with  acquiescence;  but  would  reprobate  the 
conduct  of  anyone  who  should  prevent  him  from  doing  the  act, 
or  making  use  of  the  thing,  or  should  fail  to  treat  him  in  that 
particular  way. 

A  "right"  is  thus  the  name  given  to  the  advantage  a  man  has 
when  he  is  so  circumstanced  that  a  general  feeling  of  approval, 
or  at  least  of  acquiescence,  results  when  he  does  or  abstains  from 
doing  certain  acts,  and  when  other  people  act  or  forebear  to  act  in 
accordance  with  his  wishes,  while  a  general  feeling  of  disapproval 
results  when  any  one  prevents  him  from  so  doing  or  abstaining  at 
his  pleasure,  or  refuses  to  act  in  accordance  with  his  wishes.   .  .  . 

Jurisprudence  is  specifically  concerned  only  with  such  rights  as 
are  recognized  by  law  and  enforced  by  the  power  of  a  state.  We 
may  therefore  define  a  "legal  right,"  in  what  we  shall  hereafter  see 
is  the  strictest  sense  of  that  term,  as  a  capacity  residing  in  one 
man  of  controlling,  with  the  assent  and  assistance  of  the  state,  the 
actions   of  others.  .  .  . 

It  may  be  as  well  to  re-state  in  a  few  words  precisely  what  we 
mean  by  saying  that  any  given  individual  has  "a  right." 

If  a  man  by  his  own  force  or  persuasion  can  carry  out  his  wishes, 
either  by  his  own  acts,  or  by  influencing  the  acts  of  others,  he  has 
the  "might"  so  to  carry  out  his  wishes. 

If,  irrespectively  of  having  or  not  having  this  "might,"  public 
opinion  would  view  with  approval,  or  at  least  with  acquiescence, 
his  so  carrying  out  his  wishes,  and  with  disapproval  any  resistance 
made  to  his  so  doing;  then  he  has  a  "moral  right"  so  to  carry  out 
his  wishes. 

If,  irrespectively  of  his  having,  or  not  having,  either  the  might, 
or  moral  right  on  his  side,  the  power  of  the  state  will  protect  him  in 
so  carrying  out  his  wishes,  and  will  compel  such  acts  and  forbear- 
ances on  the  part  of  other  people  as  may  be  necessary  in  order  that 
his  wishes  may  be  so  carried  out,  then  he  has  a  "legal  right"  so 
to  carry  out  his  wishes. 


416  RIGHTS 

If  it  is  a  question  of  might,  all  depends  upon  a  man's  own  powers 
of  force  or  persuasion.  If  it  is  a  question  of  moral  right,  all  depends 
on  the  readiness  of  public  opinion  to  express  itself  upon  his  side. 
If  it  is  a  question  of  legal  right,  all  depends  upon  the  readiness  of 
the  state  to  exert  its  force  on  his  behalf.  It  is  hence  obvious  that 
a  moral  and  a  legal  right  are  so  far  from  being  identical  that  they 
may  easily  be  opposed  to  one  another.  Moral  rights  have,  in  general, 
but  a  subjective  support,  legal  rights  have  the  objective  support  of 
the  physical  force  of  the  state.  Thewholepurposeof  laws  is  to  an- 
nounce in  what  cases  that  objective  support  will  be  granted,  and  the 
manner  in  which  it  may  be  obtained.  In  other  words,  Law  exists, 
as  was  stated  previously,  for  the  definition  and  protection  of  rights. 

Every  right,  whether  moral  or  legal,  implies  the  active  or  passive 
furtherance  by  others  of  the  wishes  of  the  party  having  the  right. 
Wherever  any  one  is  entitled  to  such  furtherance  on  the  part  of 
others,  such  furtherance  on  their  part  is  said  to  be  their  "duty." 

Where  such  furtherance  is  merely  expected  by  the  public  opinion 
of  the  society  in  which  they  live,  it  is  their  "moral  duty." 

Where  it  will  be  enforced  by  the  power  of  the  State  to  which 
they  are  amenable,  it  is  their  "legal  duty." 

The  correlative  of  might  is  necessity,  or  susceptibility  to  force; 
of  moral  right  is  moral  duty ;  of  legal  .right  is  legal  duty.  These 
pairs  of  correlative  terms  express,  it  will  be  observed,  in  each 
case  the  same  state  of  facts  viewed  from  opposite  sides. 

A  state  of  facts  in  which  a  man  has  within  himself  the  physical 
force  to  comisel  another  to  obey  him,  may  be  described  cither  that 
A  has  the  might  to  control  B,  or  that  B  is  under  a  necessity  of  sub- 
mitting to  A.  So  when  public  opinion  would  approve  of  A  com- 
manding and  of  B  obeying,  the  position  may  be  described  cither 
by  saying  that  A  has  a  moral  right  to  command  or  that  B  is  under 
a  moral  duty  to  obey.  Similarly,  when  the  State  will  compel  B 
to  carry  out,  eith-cr  by  act  or  forbearance,  the  wishes  of  A,  we 
may  indifferently  say  that  A  has  a  legal  right,  or  that  B  is  under  a 
legal  duty. 

Salmond,  Jurisprudence,  sec.  72. 

A  right  is  an  interest  recognized  and  protected  by  a  rule  of  right. 
It  is  any  interest,  respect  for  which  is  a  duty,  and  the  disregard  of 
which  is  a  WTong. 

All  that  is  right  or  wrong,  just  or  unjust,  is  so  by  reason  of  its 
effects  upon  the  interests  of  mankind,  that  is  to  say,  upon  the  various 


RIGHTS  417 

elements  of  human  well-being,  such  as  life,  liberty,  health,  repu- 
tation, and  the  uses  of  material  objects.  If  any  act  is  right  or 
just,  it  is  so  because  and  in  so  far  as  it  promotes  some  form  of 
human  interest.  If  any  act  is  wrong  or  unjust,  it  is  because  the 
interests  of  men  arc  prejudicially  affected  by  it.  Conduct  which  has 
no  influence  upon  the  interests  of  anyone  has  no  significance  either 
in  law  or  morals. 

Every  wrong,  therefore,  involves  some  interest  attacked  by  it, 
and  every  duty  involves  some  interest  to  which  it  relates,  and  for 
whose  protection  it  exists.  The  converse,  however,  is  not  true. 
Every  attack  upon  an  interest  is  not  a  wrong,  either  in  fact  or  in 
law,  nor  is  respect  for  every  interest  a  duty,  either  legal  or  natural. 
Many  interests  exist  de  facto  and  not  also  de  jure;  they  receive 
no  recognition  or  protection  from  any  rule  of  right.  The  violation 
of  them  is  no  wrong,  and  respect  for  them  is  no  duty.  For  the 
interests  of  men  conflict  with  each  other,  and  it  is  impossible  for 
all  to  receive  rightful  recognition.  The  rule  of  justice  selects  some 
for  protection,  and  the  others  are  rejected. 

The  interests  which  thus  receive  recognition  and  protection  from 
the  rules  of  right  are  called  rights.  Every  man  -who  has  a  right 
to  anything  has  an  interest  in  it  also,  but  he  may  have  an  interest 
without  having  a  right.  Whether  his  interest  amounts  to  a  right, 
depends  on  whether  there  exists  with  respect  to  it  a  duty  imposed 
upon  any  other  person.  In  other  words,  a  right  is  an  interest  the 
violation  of  which  is  a  wrong. 

Every  right  corresponds  to  a  rule  of  right,  from  which  it  pro- 
ceeds, and  it  is  from  this  source  that  it  derives  its  name.  That  I 
have  a  right  to  a  thing  means  that  it  is  right  that  I  should  have 
it.  All  right  is  the  right  of  him  for  whose  benefit  it  exists,  just  as  all 
wrong  is  the  wrong  of  him  whose  interests  are  affected  by  it.  .   .   . 

Rights,  like  wrongs  and  duties,  are  either  moral  or  legal.  A 
moral  or  natural  right  is  an  interest  recognized  and  protected  by 
the  rule  of  natural  justice  —  an  interest  the  violation  of  which  would 
be  a  moral  wrong,  and  respect  for  which  is  a  moral  duty.  A  legal 
right,  on  the  other  hand,  is  an  interest  recognized  and  protected 
by  the  rule  of  legal  justice  — an  interest  the  violation  of  which 
would  be  a  legal  wrong  done  to  him  whose  interest  it  is,  and  respect 
for  which  is  a  legal  duty.  "Rights,"  says  Ihering,  "are  legally 
protected  interests."  .  .  . 

It  should  be  noticed  that  in  order  that  an  interest  should  become 
a  legal  right,  it  must  obtain  not  merely  legal  protection,  but  also 


418  RIGHTS 

legal  recognition.  The  interests  of  beasts  are  to  some  extent  pro- 
tected by  the  law,  inasmuch  as  cruelty  to  animals  is  a  criminal 
offense.  But  beasts  are  not  for  this  reason  possessed  of  legal 
rights.  The  duty  of  humanity  so  enforced  is  not  conceived  by  the 
law  as  a  duty  towards  beasts,  but  merely  as  a  duty  in  respect  of 
them.  There  is  no  bond  of  legal  obligation  between  mankind  and 
them.  The  only  interest  and  the  only  right  which  the  law  recog- 
nizes in  such  a  case  is  the  interest  and  right  of  society  as  a  whole 
in  the  welfare  of  the  animals  belonging  to  it.  He  who  illtreats  a 
child  violates  a  duty  which  he  owes  to  the  child,  and  a  right  which 
is  vested  in  him.  But  he  who  illtreats  a  dog  breaks  no  vinculum 
juris  between  him  and  it,  though  he  disregards  the  obligation  of 
humane  conduct  which  he  owes  to  society  or  the  State,  and  the  cor- 
relative right  which  society  or  the  State  possesses.  Similarly,  a 
man's  interests  may  obtain  legal  protection  as  against  himself,  as 
when  drunkenness  or  suicide  is  made  a  crime.  But  he  has  not  for 
this  reason  a  legal  right  against  himself.  The  duty  to  refrain  from 
drunkenness  is  not  conceived  by  law  as  a  duty  owing  by  a  man 
to  himself,  but  as  one  owing  by  him  to  the  community.  The  only 
interest  which  receives  legal  recognition  is  that  of  society  in  the 
sobriety  of  its  members. 

Holland,  Jurisprudence,  chap.  8. 

We  have  next  to  consider  more  particularly  what  is  the  character 
of  those  elements  from  which  a  Right  results.     They  are: 

(1)  A  person  "in  whom  the  right  resides"  or  who  is  "clothed 
with  the  right,"  or  who  is  benefited  by  its  existence. 

(2)  In  many  cases,  an  object  over  which  the  right  is  exercised. 

(3)  Acts  or  forbearances  which  the  person  in  whom  the  right 
resides  is  entitled  to  exact. 

(4)  A  person  from  whom  these  acts  or  forbearances  can  be  ex- 
acted; in  other  words,  against  whom  the  right  is  available;  in 
other  words,  whose  duty  it  is  to  act  or  forbear  for  the  benefit  of 
the  subject  of  the  right. 


The  elements  of  a  legal  right  may  be  expressed  diagrammatically  as  follows 
Person 


(  entitled  —  in  whom  the  power  or  capacity  of  influence  resides  or  inheres. 

(  obliged  —  on  whom  the  corresponding  duty  falls;    toward  whom  the 
influence  is  directed;  on  whom  it  operates. 


RIGHTS  419 

(  material  or  corporeal  ) 

Object  -N  r  with    respect    to    which    it    exists    and    is 

(  immaterial  or  incorporeal  )  exercised. 

Fact      ■<  r  which  determines  its  character  or  scope,  gives  rise  to  it,  or  with 

(  event  )  reference  to  which  it  exists. 

In  addition  to  natural  rights  and  legal  rights,  political  rights  should  also  be 
distinguished.  By  political  rights  we  mean  powers  or  capacities  of  taking  an 
active  part  in  the  government,  which  the  State  concedes  to  or  recognizes  in  cer- 
tain classes  of  citizens.  Ancient  law  did  not  distinguish  legal  from  political 
rights.  It  allowed  the  former  only  to  those  who  had  the  latter.  In  modern 
states  we  may  say: 

Natural  rights  belong  to  or  reside  in  human  beings. 

Legal  or  civil  rights  belong  to  or  reside  in  persons,  natural  (i.e.,  human  beings) 
or  juristic   (e.g.,  municipalities,  corporations). 

Political  rights  belong  to  citizens  or  to  those  upon  whom  the  State  has  con- 
ferred a  partial  citizenship. 

As  the  three  catagories  are  not  necessarily  identical,  it  follows  that  possession 
of  one  form  of  rights  does  not  imply  possession  of  the  others. 

In  modern  times  the  law  aims  to  accord  civil  or  legal  rights  to  all  natural  per- 
sons to  the  extent  of  their  moral  or  natural  rights.  The  tendency  is  also  to 
extend  political  rights  as  widely  as  possible.  Ancient  law  limited  them  and  con- 
fused them.  It  conceded  no  legal  rights  to  the  foreigner;  if  the  State  gave  him 
partial  political  rights,  that  fact  gave  him  partial  legal  rights  also.  Today  all 
human  beings  are  persons,  i.e.,  subjects  of  at  least  some  legal  rights.  Formerly 
this  was  not  so. 

Markby,  Elements  of  Law,  sec.  164. 

Sometimes  a  right  exists  only  as  against  one  or  more  individuals, 
capable  of  being  ascertained  and  named;  sometimes  it  exists  gen- 
erally against  all  persons,  members  of  the  same  political  society  as 
the  person  to  whom  the  right  belongs;  or,  as  is  commonly  said, 
somewhat  arrogantly,  it  exists  against  the  world  at  large.  Thus  in 
the  case  of  a  contract  between  A  and  B,  the  right  of  A  to  demand 
performance  of  the  contract  exists  against  B  only;  whereas  in  the 
case  of  ownership,  the  right  to  hold  and  enjoy  the  property  exists 
against  persons  generally.  This  distinction  between  rights  is  marked 
by  the  use  of  terms  derived  from  the  Latin:  the  former  are  called 
rights  in  personam;  the  latter  are  called  rights  in  rem. 

Holland,  Jurisprudence,  chap.  9. 

A  right  is  available  either  against  a  definite  person  or  persons,  or 
against  all  persons  indefinitely.  A  servant,  for  instance,  has  a  right 
to  his  wages  for  the  work  he  has  done  available  against  a  definite 


420  RIGHTS 

individual,  his  master;  while  the  owner  of  a  garden  has  a  right  to 
its  exclusive  enjoyment  available  against  no  one  individual  more 
than  another,  but  against  everybody. 

This  distinction  between  rights  has  been  expressed  by  calling  a 
right  of  the  definite  kind  a  right  in  personam,  of  the  indefinite  kind 
a  right  in  rem.  And  these  terms,  though  not  perfectly  satisfactory, 
have  obtained  a  currency  which  is  of  itself  a  recommendation,  and 
moreover  are  perhaps  as  good  as  any  substitutes  which  could  be 
suggested  for  them.  The  former  term  indicates  with  tolerable 
perspicuity  a  right  available  "in  personam  {certam),''  against  a  defi- 
nite individual,  while  the  latter  implies  that  the  right  is  capable  of 
exercise  over  its  object,  "w  rem"  without  reference  to  any  one 
person  more  than  another. 

Scheme  of  Rights  in  Anglo-American  Law. 

I.     In  rem. 

(1)  Personal  integrity.  The  right  not  to  be  injured  in  body  or  mind  by 
the  acts  or  negligence  of  others.  This  extends  to  (i)  life;  (ii)  body; 
(iii)  health;  (a)  bodily;  (b)  mental.  Originally  the  taking  of  life  did 
not  give  rise  to  any  civil  liability.  But  modern  legislation  has  given 
an  action  to  the  successors  or  the  estate  of  the  person  killed. 

(2)  Personal  liberty.  The  right  of  free  motion  and  locomotion  except  as 
restricted  by  law  and  restrained  lawfully  by  the  proper  officers  acting 
in  the  proper  manner. 

(3)  Society  and  control  of  family  and  dependents. 

(4)  Private  property. 
II.     In  personam. 

(1)  Contractual.  Rights  arising  independently  of  pre-existing  rights  out 
of  the  agreement  of  the  parties. 

(2)  Quasi- contractual.  Rights  to  have  restitution  or  compensation  for  a 
benefit  conferred,  imposed  by  law  in  order  to  prevent  unjust  enrich- 
ment of  one  party  at  the  expense  of  another. 

(3)  Fiduciary.  Rights  to  have  a  trust  or  confidence  executed  in  specie 
(specifically).  These  rights  are  recognized  only  in  courts  of  equity  or 
in  proceedings  in  equity. 

(4)  Delictual.  Rights  to  compensation  arising  from  violations  of  pre- 
existing rights  ill  rem. 

Blackstone,  Commentaries,  I,  129-140. 

These  [i.e.,  rights  in  rem]  may  be  reduced  to  three  principal  or 
primary  articles;  the  right  of  personal  security,  the  right  of  personal 
liberty,  and  the  right  of  private  property.     .     .     . 

I.  The  right  of  personal  security  consists  in  a  person's  legal  and 
uninterrupted  enjoyment  of  his  life,  his  limbs,  his  body,  his  health, 
and  his  reputation. 


RIGHTS  421 

1.  Life  is  the  immediate  gift  of  God,  a  right  inherent  by  nature 
in  every  individual ;  and  it  begins  in  contemplation  of  law  as  soon 
as  an  infant  is  able  to  stir  in  its  mother's  womb.     .     .     . 

2.  A  man's  limbs  (by  which  for  the  present  we  understand  only 
those  members  which  may  be  useful  to  him  in  fight,  and  the  loss  of 
which  alone  amounts  to  mayhem  by  the  common  law)  are  also  the 
gift  of  the  wise  Creator,  to  enable  him  to  protect  himself  from 

•  external  injuries  in  a  state  of  nature.  To  these  therefore  he  has  a 
natural  inherent  right;  and  they  can  not  be  wantonly  destroyed  or 
disabled  without  a  manifest  breach  of  civil  liberty. 

Both  the  life  and  limbs  of  a  man  are  of  such  high  value,  in  the 
estimation  of  the  law  of  England,  that  it  pardons  even  homicide  if 
committed  se  defendendo,  or  in  order  to  preserve  them.  For  what- 
ever is  done  by  a  man  to  save  either  life  or  member,  is  looked  upon 
as  done  upon  the  highest  necessity  and  compulsion. 

3.  Besides  those  limbs  and  members  that  may  be  necessary  to  a 
man  in  order  to  defend  himself  or  annoy  his  enemy,  the  rest  of  his 
person  or  body  is  also  entitled,  by  the  same  natural  right,  to  security 
from  the  corporal  insults  of  menaces,  assaults,  beating  and  wounding; 
though  such  insults  amount  not  to  destruction  of  life  and  member. 

4.  The  preservation  of  a  man's  health  from  such  practices  as  may 
prejudice  or  annoy  it;    and 

5.  The  security  of  his  reputation  or  good  name  from  the  arts  of 
detraction  and  slander,  are  rights  to  which  every  man  is  entitled  by 
reason  and  natural  justice;  since,  without  these,  it  is  impossible  to 
have  the  perfect  enjoyment  of  any  other  advantage  or  right.     .     .     . 

II.  Next  to  personal  security,  the  law  of  England  regards,  asserts 
and  preserves  the  personal  liberty  of  individuals.  This  personal 
liberty  consists  in  the  power  of  locomotion,,  of  changing  situation, 
or  moving  one's  person  to  whatsoever  place  one's  own  inclination 
may  direct  without  imprisonment  or  restraint,  unless  by  due  course 
of  law.  Concerning  which  we  may  make  the  same  observations  as 
upon  the  preceding  article,  that  it  is  a  right  strictly  natural;  that 
the  laws  of  England  have  never  abridged  it  without  sufficient  cause; 
and  that,  in  this  kingdom,  it  cannot  ever  be  abridged  at  the  mere 
discretion  of  the  magistrate,  without  the  express  permission  of  the 
laws.  Here  again  the  language  of  the  great  charter  is,  that  no  free- 
man shall  be  taken  or  imprisoned  but  by  the  lawful  judgment  of 
his  equals,  or  by  the  law  of  the  land.  And  many  subsequent  old 
statutes  expressly  direct,  that  no  man  shall  be  taken  or  imprisoned 
by  suggestion  or  petition  to  the  king  or  his  council,  unless  it  be  by 


422  RIGHTS 

legal  indictment,  or  the  process  of  the  common  law.  By  the  petition 
of  right,  3  Car.  I.,  it  is  enacted,  that  no  freeman  shall  be  imprisoned 
or  detained  without  cause  shown,  to  which  he  may  make  answer 
according  to  law.  By  16  Car.  I.  c.  10,  if  any  person  be  restrained 
of  his  liberty  by  order  or  decree  of  any  illegal  court,  or  by  com- 
mand of  the  king's  majesty  in  person,  or  by  warrant  of  the  council 
board,  or  of  any  of  the  privy  council,  he  shall,  upon  demand  of  his 
counsel,  have  a  writ  of  habeas  corpus,  to  bring  his  body  before  the 
court  of  king's  bench  or  common  pleas,  who  shall  determine  whether 
the  cause  of  his  commitment  be  just,  and  thereupon  do  as  to  justice 
shall  appertain.  And  by  31  Car.  II.  c.  2,  commonly  called  the 
habeas  corpus  act,  the  methods  of  obtaining  this  writ  are  so  plainly 
pointed  out  and  enforced,  that,  so  long  as  this  statute  remains  un- 
impeached,  no  subject  of  England  can  be  long  detained  in  prison, 
except  in  those  cases  in  which  the  law  requires  and  justifies  such 
detainer.  And  lest  this  act  should  be  evaded  by  demanding 
unreasonable  bail  or  sureties  for  the  prisoner's  appearance,  it  is 
declared  by  1  ^^^  and  M.  st.  2,  c.  2,  that  excessive  bail  ought  not  to 
be  required.     .     .     . 

The  confinement  of  the  person,  in  any  wise,  is  an  imprisonment ; 
so  that  the  keeping  a  man  against  his  will  in  a  private  house,  putting 
him  in  the  stocks,  arresting  or  forcibly  detaining  him  in  the  street, 
is  an  imprisonment.  And  the  law  so  much  discourages  unlawful 
confinement,  that  if  a  man  is  under  duress  of  imprisonment,  which 
we  before  explained  to  mean  a  compulsion  by  an  illegal  restraint 
of  liberty,  until  he  seals  a  bond  or  the  like,  he  may  allege  this  duress, 
and  avoid  the  extorted  bond.  But  if  a  man  be  lawfully  imprisoned, 
and,  either  to  procure  his  discharge,  or  on  any  other  fair  account, 
seals  a  bond  or  a  deed,  this  is  not  by  duress  of  imprisonment,  and 
he  is  not  at  liberty  to  avoid  it.  To  make  imprisonment  lawful,  it 
must  either  be  by  process  from  the  courts  of  judicature,  or  by 
warrant  from  some  legal  officer  having  authority  to  commit  to 
prison;  which  warrant  must  be  in  writing,  under  the  hand  and  seal 
of  tlie  magistrate,  and  express  the  causes  of  the  commitment,  in 
order  to  be  examined  into,  if  necessary,  upon  a  habeas  corpus.  If 
there  be  no  cause  expressed,  the  jailer  is  not  bound  to  detain  the 
prisoner;  for  the  law  judges  in  that  respect,  seiith  Sir  Edward  Coke, 
like  Festus,  the  Roman  governor,  that  it  is  unreasonable  to  send  a 
prisoner,  and  not  to  signify  withal  the  crimes  alleged. 

A  natural  and  regular  consequence  of  this  personal  liberty  is,  that 
every  Englishman  may  claim  a  right  to  abide  in  his  own  country  so 


RIGHTS  423 

long  as  he  pleases;  and  not  to  be  driven  from  it  unless  by  the  sen- 
tence of  the  law.  The  king,  indeed,  by  his  royal  prerogative,  may 
issue  out  his  WTit  ne  exeat  regno,  and  prohibit  any  of  his  subjects  from 
going  into  foreign  parts  without  license.  This  may  be  necessary 
for  the  public  service  and  safeguard  of  the  commonwealth.  But  no 
power  on  earth  except  the  authority  of  parliament,  can  send  any 
subject  of  England  out  of  the  land  against  his  will;  no,  not  even  a 
criminal.  For  exile  and  transportation  are  punishments  at  present 
unknown  to  the  common  law;  and,  wherever  the  latter  is  now 
inflicted,  it  is  either  by  the  choice  of  the  criminal  himself,  to  escape  a 
capital  punishment,  or  else  by  the  express  direction  of  some  modern 
act  of  parliament.  To  this  purpose  the  great  charter  declares  that 
no  freeman  shall  be  banished,  unless  by  the  judgment  of  his  peers, 
or  by  the  law  of  the  land.  And  by  the  habeas  corpus  act,  31 
Car.  II  c.  2  (that  second  magna  carta,  and  stable  bulwark 
of  our  liberties),  it  is  enacted,  that  no  subject  of  this  realm,  who 
is  an  inhabitant  of  England,  Wales,  or  Berwick,  shall  be  sent 
prisoner  into  Scotland,  Ireland,  Jersey,  Guernsey,  or  places 
beyond  the  seas  (where  they  cannot  have  the  full  benefit  and 
protection  of  the  common  law) :  but  that  all  such  imprisonments 
shall  be  illegal.     .     .     . 

The  law  is  in  this  respect  so  benignly  and  liberally  construed  for 
the  benefit  of  the  subject,  that,  though  within  the  realm  the  king 
may  command  the  attendance  and  service  of  all  his  liegemen,  yet  he 
cannot  send  any  man  out  of  the  realm,  even  upon  the  public  service; 
excepting  sailors  and  soldiers,  the  nature  of  whose  employment 
necessarily  implies  an  exception:  he  cannot  even  constitute  a  man 
lord  deputy  or  lieutenant  of  Ireland  against  his  will,  nor  make  him 
a  foreign  ambassador.  For  this  might,  in  reality,  be  no  more  than 
an  honorable  exile. 

III.  The  third  absolute  right,  inherent  in  every  Englishman,  is 
that  of  property:  which  consists  in  the  free  use,  enjoyment,  and 
disposal  of  all  his  acquisitions,  without  any  control  or  diminution, 
save  only  by  the  laws  of  the  land.  The  original  of  private  property 
is  probably  founded  in  nature,  as  will  be  more  fully  explained  in 
the  second  book  of  the  ensuing  commentaries:  but  certainly  the 
modifications  under  which  we  at  present  find  it,  the  method  of  con- 
serving it  in  the  present  owner,  and  of  translating  it  from  man 
to  man,  are  entirely  derived  from  societ\';  and  are  some  of  those 
civil  advantages,  in  exchange  for  which  every  individual  has  resigned 
a  part  of  his  natural  liberty.      The  laws  of  England  are  therefore, 


424  RIGHTS 

in  point  of  honor  and  justice,  extremely  watchful  in  ascertaining 
and  protecting  this  right.  Upon  this  principle  the  great  charter 
has  declared  that  no  freeman  shall  be  disseised,  or  divested,  of  his 
freehold,  or  of  his  liberties,  or  free  customs,  but  by  the  judgment  of 
his  peers,  or  by  the  law  of  the  land.  And  by  a  variety  of  ancient 
statutes  it  is  enacted,  that  no  man's  lands  or  goods  shall  be  seized 
into  the  king's  hands,  against  the  great  charter,  and  the  law  of  the 
land;  and  that  no  man  shall  be  disinherited,  nor  put  out  of  his 
franchises  or  freehold,  unless  he  be  duly  brought  to  answer,  and  be 
forejudged  by  course  of  law;  and  if  anything  be  done  to  the  con- 
trary, it  shall  be  redressed,  and  holden  for  none. 

So  great,  moreover,  is  the  regard  of  the  law  for  private  property, 
that  it  will  not  authorize  the  least  violation  of  it;  no,  not  even  for 
the  general  good  of  the  whole  community.  If  a  new  road,  for  in- 
stance, were  to  be  made  through  the  grounds  of  a  private  person, 
it  might  perhaps  be  extensively  beneficial  to  the  public;  but  the 
law  permits  no  man,  or  set  of  men,  to  do  this  without  the  con- 
sent of  the  owner  of  the  land.  In  vain  it  may  be  urged,  that  the 
good  of  the  individual  ought  to  yield  to  that  of  the  community; 
for  it  would  be  dangerous  to  allow  any  private  man,  or  even  any 
public  tribunal,  to  be  the  judge  of  this  common  good,  and  to  decide 
whether  it  be  expedient  or  not.  Besides,  the  public  good  is  in  noth- 
ing more  essentially  interested,  than  in  the  protection  of  every  in- 
dividual's private  rights,  as  modelled  by  the  municipal  law.  In  this 
and  similar  cases  the  legislature  alone  can,  and  indeed  frequently 
does,  interpose,  and  compel  the  individual  to  acquiesce.  But  how 
does  it  interpose  and  compel  ?  Not  by  absolutely  stripping  the  sub- 
ject of  his  property  in  an  arbitrary  manner;  but  by  giving  him  a 
full  indemnification  and  equivalent  for  the  injury  thereby  sustained. 
The  public  is  now  considered  as  an  individual,  treating  with  an 
individual  for  an  exchange.  All  that  the  legislature  does  is  to 
oblige  the  owner  to  alienate  his  possessions  for  a  reasonable  price; 
and  even  this  is  an  exertion  of  power,  which  the  legislature  in- 
dulges with  caution,  and  which  nothing  but  the  legislature  can 
perform. 

Nor  is  this  the  only  instance  in  which  the  law  of  the  land  has 
postponed  even  public  necessity  to  the  sacred  and  inviolable  rights 
of  private  property.  For  no  subject  of  England  can  be  constrained 
to  pay  any  aids  or  taxes,  even  for  the  defence  of  the  realm  or  the 
support  of  government,  but  such  as  are  imposed  by  his  own  consent 
or  that  of  his  representatives  in  parliament. 


RIGHTS  425 

Terry,  Leading  Principles  of  Anglo-American  Law,  §  350. 

The  next  right  to  be  examined  is  one  which  has  as  yet  no  name 
in  our  law.  I  shall  therefore  venture  to  call  it  the  right  of  unim- 
paired pecuniary  condition.  It  is  the  right  not  to  be  subjected  to 
pecuniary  loss,  not  to  have  the  total  value  of  one's  belongings 
reduced.  The  protected  condition  of  fact  which  forms  the  content 
of  the  right  is  the  holding  of  purchasing  power,  in  whatever  form  it 
exists,  or  the  being  in  such  a  situation  that  purchasing  power  in 
some  form  will  come  into  one's  hands,  such  an  arrangement  of 
circumstances  as  will  bring  it  to  one.  In  reference  to  this  right 
all  that  a  person  has  is  looked  upon  simply  with  regard  to  its  value, 
whereas  the  rights  of  property,  as  above  described,  concern  the 
specific  qualities  of  things.  The  two  conceptions  are  evidently 
quite  distinct.  A  thing  may  be  possessed  and  its  physical  con- 
dition be  preserved  unimpaired  though  it  has  no  value  whatever; 
and  on  the  other  hand,  a  given  act  may  be  a  clear  and  undoubted 
violation  of  the  right  of  property  in  a  thing,  though  it  greatly 
enhances  its  value,  as  if  A  builds  a  house  upon  B's  land  without 
the  latter's  permission,  so  that  the  house  becomes  the  property  of 
B,  or  if  he  carves  B's  block  of  rough  marble  into  a  fine  statue. 
Often,  however,  the  two  rights  overlap,  so  that  the  same  act  is  a 
violation  of  both,  which  is  the  case,  for  instance,  with  a  tortious 
taking  of  property. 

Violations  of  the  right  of  unimpaired  pecuniary  condition  are 
divided  by  the  civilians  into  two  classes,  namely,  damnum  emergens, 
which  is  the  deprivation  of  purchasing  power  that  one  already  has, 
and  lucrum  cessans,  which  is  the  being  prevented  from  acquiring 
purchasing  power  that  one  would  otherwise  have  acquired. 

This  is  not  a  Property  Right.  This  right  is  usually  con- 
founded with  the  right  of  property,  at  least  in  so  far  that  viola- 
tions of  it  are  called  violations  of  the  right  of  property.  Black- 
stone  divides  the  "absolute  rights"  of  persons  into  the  rights  of 
personal  security,  personal  liberty  and  private  property,  which  last 
must  be  meant  to  include  the  right  now  under  discussion.  This 
confusion  has  probably  arisen  partly  from  a  failure  to  notice  the 
very  important  distinction  between  the  deprivation  of  a  right  and 
its  violation,  which  will  be  more  fully  discussed  in  a  subsequent 
chapter,  but  in  relation  to  which  it  is  sufficient  to  say  here  that  all 
protected  rights  are  conclusively  presumed  to  have  a  pecuniary 
value,  so  that  the  deprivation  of  a  property  right  or  even  the 
preventing  of  a  person  from  acquiring  one  will  be  a  violation  of  the 


42G  RIGHTS 

right  of  unimpaired  pecuniary  condition.  Indeed  even  a  bare 
possibility  or  a  permissive  or  facultative  right  may  have  a  pecuniary 
value  so  that,  though  such  rights  are  incapable  of  being  violated, 
the  deprivation  of  them  may  be  a  wrong.  Another  source  of 
confusion  is  very  likely  to  be  found  in  the  use  of  the  word  property 
in  a  not  strictly  correct  sense  to  include  almost  all  transferable  or 
actually  valuable  rights,  as  will  hereafter  be  explained. 

It  may  perhaps  be  said  that  although  the  right  here  called  that 
of  unimpaired  pecuniary  condition  is  plainly  not  the  same  as  either 
of  the  sub-rights  described  under  the  head  of  property,  yet  it  is  a 
part  of  the  right  of  property  in  a  wider  sense  and  should  be  placed 
as  a  sub-right  under  that  head  rather  than  as  an  independent  right. 
This  brings  the  question  down  to  a  mere  matter  of  nomenclature 
and  arrangement.  But  even  on  this  ground  it  is  better  to  keep 
the  two  rights  separate.  Aside  from  the  argument  in  favor  of  this 
view  to  be  drawn  from  the  analysis  of  the  idea  of  property  in  the 
full  sense  of  that  word,  including  the  permissive  and  facultative  as 
well  as  the  protected  rights,  which  will  form  the  subject-matter  of 
the  next  chapter,  there  is  the  important  fact  that  this  right  has 
duties  specially  corresponding  to  it  which  are  largely  different  from 
those  which  correspond  to  the  right  of  property,  while  on  the  other 
hand  the  duties  corresponding  to  the  two  subdivisions  of  the  latter 
right,  are  in  the  main,  the  same.  Therefore  it  is  almost  necessary 
to  have  some  common  name  for  the  latter  which  shall  exclude  the 
former  to  be  used  in  the  definitions  of  the  various  duties.  This 
correspondence  of  duties  can  be  seen  by  referring  to  the  chapter 
on  Duties  Corresponding  to  Rights  in  Rem,  where  the  various 
duties  are  described.  Speaking  roughly,  it  may  be  said  that  the 
duties  which  correspond  to  the  right  of  unimpaired  pecuniary  con- 
dition are  generally  duties  not  to  act  "maliciously"  or  fraudulently, 
while  those  which  correspond  to  rights  of  property  can  be  broken 
by  conduct  which  is  simply  "negligent,"  or  are  even  many  of 
them  peremptory  duties. 

This  distinction  is  very  clearly  brought  out  in  certain  cases  on 
trade-marks.  A  right  in  a  trade-mark  is  not  strictly  a  property 
right  under  the  above  description,  but  it  is  a  distinct  and  separate 
protected  right  of  the  kind  that  I  shall  hereafter  describe  as  "abnor- 
mal property  rights,"  and  is  contrasted  with  and  related  to  the 
right  of  unimpaired  pecuniary  condition  in  the  same  manner  as 
true  property  rights  are.  Now  there  are  many  cases  "in  which  the 
words  or  devices  used  are  such  as  cannot  be  adopted  as  a  legal 


RIGHTS  427 

trade-mark,  but  defendant  is,  with  fraudulent  intent,  so  closely 
imitating  them  as  to  injure  plaintiff,"  and  where  in  so  doing  he 
commits  a  wrong.  Thus  in  Coffeen  v.  Brunton  it  was  said:  "The 
complainant  has  not  obtained  a  patent  for  his  alleged  invention. 
Any  other  individual  has  a  right  to  make  and  sell  the  same  medicine. 
Nor  has  the  complainant  an  exclusive  right  to  the  label.  On 
neither  of  these  grounds  can  the  complainant  claim  an  injunction; 
but  if  there  be  found  in  the  representations  of  the  defendant  that 
his  liniment  is  the  same  as  the  Chinese  liniment,  which  recom- 
mends it  to  the  public  to  the  injury  of  the  complainant,  it  may  be 
ground  for  the  equitable  interposition  of  this  court."  In  such  cases 
there  is  no  special  right  in  the  words  or  device,  the  special  duties 
corresponding  to  which  can  be  violated  without  anything  fraudulent 
in  the  conduct  of  the  wrong-doer,  but  merely  the  general  right 
not  to  be  subjected  to  pecuniary  loss,  to  which  corresponds,  among 
others,  the  general  duty  not  to  make  fraudulent  misrepresentations 


428  PERSONS 


CHAPTER   IX 

PERSONS ' 

By  persons,  in  law,  we  mean  those  entities,  natural  or  artificial,  which  the  law 
clothes  with  the  power  of  exercising  a  legal  control  over  or  influence  upon  the 
acts  of  others.  Persons  are  of  two  classes,  natural  persons  and  juristic  or  arti- 
ficial persons.  In  modern  law,  every  human  being  is  recognized  as  a  natural 
person  and  hence  as  a  legal  person,  since  modern  law  allows  a  legal  personality 
to  every  natural  person.  Juristic  persons  are  aggregates  of  natural  persons  or  of 
rights  or  even  of  objects,  which  for  convenience  in  certain  relations  or  for  cer- 
tain purposes,  the  law  treats  as  subjects  of  legal  rights  and  hence  as  persons. 
The  most  important  form  is  the  corporation  which  may  be  public  —  for  example, 
municipalities,  such  as  cities  and  towns,  school  districts,  sanitary  districts,  drain- 
age and  irrigation  districts  —  or  private,  including  public  service  companies, 
such  as  railway  companies,  and  ordinary  business  companies. 


1.     WHEN  DOES  EXISTENCE  BEGIN  LEGALLY? 

Markby,  Elements  of  Law,  sees.  131-132. 

Persons  are  human  beings  capable  of  rights.  To  constitute  a 
human  being  capable  of  rights  two  things  are  necessary,  birth  and 
survival  of  birth. 

There  are  expressions  to  be  found  in  English  law  books  which 
look  as  if  the  foetus,  or  even  the  embryo,  in  the  mother's  womb 
were  capable  of  rights.  Thus  we  find  it  said  that  the  unborn  child 
may  take  by  devise  or  inheritance.  But  I  think  the  true  meaning 
of  this  is,  not  that  the  unborn  child  really  takes,  but  that  the  right 
is  reserved  for  the  child  until  the  moment  of  its  birth. 

Blackstone,  Commentaries,  I,  130. 

An  infant  in  ventre  sa  mere,  or  in  the  mother's  womb,  is  supposed 
in  law  to  be  born  for  many  purposes.  It  is  capable  of  having  a  leg- 
acy, or  a  surrender  of  a  copyhold  estate,  made  to  it.  It  may  have 
a  guardian  assigned  to  it;  and  it  is  enabled  to  have  an  estate 
limited  to  its  use,  and  to  take  afterwards  by  such  limitation,  as  if  it 

^Salmond,  Jurisprudence,  §§109-114;  Korkunov,  General  Theory  of  Law 
(Hastings'  translation)  §  28. 


LEGAL  EXISTENCE  429 

were  then  actually  born.  And  in  this  point  the  civil  law  agrees 
with  ours. 

Dietrich  v.  Northampton,   Supreme   Judicial   Court    of 

Massachusetts,  1884  (138  Mass.  14). 
•  Holmes,  J.:  The  mother  of  the  deceased  slipped  upon  a  defect 
in  a  highway  of  the  defendant  town,  fell,  and  has  had  a  verdict  for 
her  damages.  At  the  time,  she  was  between  four  and  five  months 
advanced  in  pregnancy,  the  fall  brought  on  a  miscarriage,  and  the 
child,  although  not  directly  injured,  unless  by  a  communication  of 
the  shock  to  the  mother,  was  too  little  advanced  in  foetal  life  to  sur- 
vive its  premature  birth.  There  was  testimony,  however,  based 
upon  observing  motion  in  its  limbs,  that  it  did  live  for  ten  or  fifteen 
minutes.  Administration  was  taken  out,  and  the  administrator 
brought  this  action  upon  the  Pub.  Sts.  c.  52,  s.  17,  for  the  further 
benefit  of  the  mother  in  part  or  in  whole,  as  next  of  kin.  The 
court  below  ruled  that  the  action  could  not  be  maintained;  and 
we  are  of  opinion  that  the  ruling  was  correct. 

The  plaintiff  founds  his  argument  mainly  on  a  statement  by 
Lord  Coke,  which  seems  to  have  been  accepted  as  law  in  England, 
to  the  effect  that  if  a  woman  is  quick  with  child,  and  takes  a  potion, 
or  if  a  man  beats  her,  and  the  child  is  born  alive  and  dies  of  the 
potion  or  battery,  this  is  murder.  3  Inst.  50.  1  Hawk.  P.  C.  c.  31, 
s.   16.     1  Bl.  Com.  129,   130.     4  Bl.  Com.   198.    Beale  v.  Beale, 

1  P.  Wms.  244,  246.  Burdet  v.  Hopegood,  1  P.  Wms.  486.  Rex  v. 
Senior,  1  Moody  C.  C.  346.     Regi?ia  v.  West,  2  C.  &  K.  784;  S.  C. 

2  Cox  C.  C.  500.  We  shall  not  consider  how  far  Lord  Coke's 
authority  should  be  followed  in  this  Commonwealth,  if  the  matter 
were  left  to  the  common  law,  beyond  observing  that  it  was  opposed 
to  the  case  in  3  Ass.  pi.  2;  S.  C.  Y.  B.  1  Ed.  HI.  23,  pi.  18;  which 
seems  not  to  have  been  doubted  by  Fitzherbert  or  Brooke,  and 
which  was  afterwards  cited  as  law  by  Lord  Hale.  Fitz.  Abr.,  Endite- 
ment,  pi.  4;  Corone,  pi.  146.  Bro.  Abr.  Corone,  pi.  68.  1  Hale 
P.  C.  433. 

For  even  if  Lord  Coke's  statement  were  the  law  of  this  Common- 
wealth, the  question  would  remain  whether  the  analogy  could  be 
relied  on  for  determining  the  rule  of  civil  liability.  Some  ancient 
books  seem  to  have  allowed  the  mother  an  appeal  for  the  loss  of 
her  child  by  a  trespass  upon  her  person.  ,  .  .  Which  again  others 
denied.  .  .  .  But  no  case,  so  far  as  we  know,  has  ever  decided 
that,  if  the  infant  survived,  it  could  maintain  an  action  for  injuries 


430  PERSONS 

received  by  it  while  in  its  mother's  womb.  Yet  that  is  the  test  of 
the  principle  relied  on  by  the  plaintiff,  who  can  hardly  avoid  con- 
tending that  a  pretty  large  field  of  litigation  has  been  left  unex- 
plored until  the  present  moment. 

If  it  should  be  argued  that  an  action  could  be  maintained  in  the 
case  supposed,  and  that,  on  general  principles,  an  injury  trans- 
mitted from  the  actor  to  a  person  through  his  own  organic  sub- 
stance, or  through  his  mother,  before  he  became  a  person,  stands 
on  the  same  footing  as  an  injury  transmitted  to  an  existing  person 
through  other  intervening  substances  outside  him,  the  argument  in 
this  general  form  is  not  helped,  but  hindered,  by  the  analogy  drawn 
from  Lord  Coke's  statement  of  the  criminal  law.  For  apart  from 
the  question  of  remoteness,  the  argument  would  not  be  affected 
by  the  degree  of  maturity  reached  by  the  embryo  at  the  moment 
of  the  organic  lesion  or  wrongful  act.  Whereas  Lord  Coke's  rule 
requires  that  the  woman  be  quick  with  child,  which,  as  this  court 
has  decided,  means  more  than  pregnant,  and  requires,  that  the 
child  shall  ha\e  reached  some  degree  of  quasi  independent  life  at 
the  moment  of  the  act.  Commonwealth  v.  Parker,  9  Met.  263. 
State  V.  Cooper,  2  Zabr.  52. 

For  the  same  reason,  this  limitation  of  criminal  liability  is  equally 
inconsistent  with  any  argument  drawn  from  the  rule  as  to  devises 
and  vouching  to  warranty,  which  is  laid  down  without  any  such 
limitation,  and  which  may  depend  on  different  considerations, 
Co.  Lit.  390a,  and  cases  cited.  Reeve  v.  Long,  1  Salk.  227.  Scatter- 
wood  V.  Edge,  1  Salk.  229.     Harper  v.  Archer,  4  Sm.  &  M.  99. 

If  these  general  difficulties  could  be  got  o\er,  and  if  we  should 
assume,  irrespective  of  precedent,  that  a  man  might  owe  a  civil 
duty  and  incur  a  conditional  prospective  liability  in  tort  to  one 
not  yet  in  being,  and  if  we  should  assume  also  that  causing  an  infant 
to  be  born  prematurely  stands  on  the  same  footing  as  wounding 
or  poisoning,  we  should  then  be  confronted  by  the  question  raised 
by  the  defendant,  whether  an  infant  dying  before  it  was  able  to 
live  separated  from  its  mother  could  be  said  to  have  become  a  per- 
son recognized  by  the  law  as  capable  of  having  a  locus  standi  in 
court,  or  of  being  represented  there  by  an  administrator.  Mar- 
sellis  V.  Thalhimer,  2  Paige,  35.  Harper  v.  Archer,  uhi  supra. 
4  Kent.  Com.  249,  n.  (b).  And  this  question  would  not  be  disposed 
of  by  citing  those  cases  where  equity  has  recognized  the  infant  pro- 
visionally while  still  alive  en  ventre.  Lutterel's  case,  stated  in 
Hale  v.  Hale,  Prec.  Ch.  50.     Wallis  v.  Hodson,  2  Atk.  114,  117. 


CIVIL  DEATH  431 

See  Musgrave  v.  Parry,  2  Vern.  710.  And  perhaps  not  by  showing 
that  such  an  infant  was  within  the  protection  of  the  criminal  law. 
Compare  2  Savigny,  System  des  heutigen  Roemischen  Rechts, 
Bey  1  age  III. 

The  Pub.  Sts.  c.  207,  s,  9  (St.  1845,  c.  27,  seemingly  suggested 
by  Commonwealth  v.  Parker,  ubi  supra)  punish  unlawful  attempts 
to  procure  miscarriage,  acts  which  of  course  have  the  death  of  the 
child  for  their  immediate  object;  and  while  they  greatly  increase 
the  severity  of  the  punishment  if  the  woman  dies  in  consequence 
of  the  attempt,  they  make  no  corresponding  distinction  if  the 
child  dies,  even  after  leaving  the  womb.  This  statute  seems 
to  us  to  shake  the  foundation  of  the  argument  drawn  from  the 
criminal  law,  and  no  other  occurs  to  us  which  has  not  been  dealt 
with. 

Taking  all  the  foregoing  considerations  into  account,  and  further, 
that,  as  the  unborn  child  was  a  part  of  the  mother  at  the  time  of 
the  injury,  any  damage  to  it  which  was  not  too  remote  to  be 
recovered  for  at  all  was  recoverable  by  her,  we  think  it  clear  that 
the  statute  sued  upon  does  not  embrace  the  plaintiff's  intestate 
within  its  meaning. 

2.    CIVIL  DEATH  1 

Blackstone,  Commentaries,  I,  132. 

These  rights  of  life  and  member  can  only  be  determined  by  the 
death  of  the  person;  which  was  formerly  accounted  to  be  either  a 
civil  or  natural  death.  The  civil  death  commenced,  if  any  man 
was  banished  or  abjured  the  realm  by  the  process  of  the  common 
law,  or  entered  into  religion;  that  is,  went  into  a  monastery,  and 
became  there  a  monk  professed :  in  which  case  he  was  absolutely  dead 
in  law,  and  his  next  heir  should  have  his  estate.  For  such  banished 
man  was  entirely  cut  off  from  society:  and  such  a  monk,  upon 
his  profession,  renounced  solemnly  all  secular  concerns :  and  besides, 
as  the  popish  clergy  claimed  an  exemption  from  the  duties  of  ci\'il 
life  and  the  commands  of  the  temporal  magistrate,  the  genius  of 
the  English  laws  would  not  suffer  those  persons  to  enjoy  the  benefits 
of  society  who  secluded  themselves  from  it  and  refused  to  submit 
to  its  regulations.     A  monk  was  therefore  counted  civiliter  mortuus, 

^  Compare  capitis  deminutio  in  Roman  Law.  Moyle,  Institutes  of  Justinian, 
Excursus  I;  Aluirhcad,  Historical  Introduction  to  the  Private  Law  of  Rome, 
§29;   Sohm,  Institutes  of  Roman  Law  (Ledlie's  translation)  2  ed.,  §35. 


432  PERSONS 

and  when  he  entered  into  rcHgion  might,  Hke  other  dying  men, 
make  his  testament  and  executors;  or  if  he  made  none,  the  ordinary 
might  grant  administration  to  his  next  of  kin,  as  if  he  were  actually 
dead  intestate.  And  such  executors  and  administrators  had  the 
same  power,  and  might  bring  the  same  actions  for  debts  due  to  the 
religious,  and  were  liable  to  the  same  actions  for  those  due  from 
him,  as  if  he  were  naturally  deceased.  Nay,  so  far  has  this  prin- 
ciple been  carried,  that  when  one  was  bound  in  a  bond  to  an  abbot 
and  his  successors,  and  afterwards  made  his  executors,  and  pro- 
fessed himself  a  monk  of  the  same  abbey,  and  in  process  of  time  was 
himself  made  abbot  thereof;  here  the  law  gave  him,  in  the  capacity 
of  abbot,  an  action  of  debt  against  his  own  executors  to  recover 
the  money  due.  In  short,  a  monk  or  religious  was  so  effectually 
dead  in  law,  that  a  lease  made  even  to  a  third  person,  during  the 
life  (generally)  of  one  who  afterwards  became  a  monk,  determined 
by  such  his-  entry  into  religion ;  for  which  reason  leases,  and  other 
conveyances  for  life,  were  usually  made  to  have  and  to  hold  for 
the  term  of  one's  natural  life.  But,  even  in  the  times  of  popery, 
the  law  of  England  took  no  cognizance  of  profession  in  any  foreign 
country,  because  the  fact  could  not  be  tried  in  our  courts;  and 
therefore,  since  the  Reformation,  this  disability  is  held  to  be  abol- 
ished: as  is  also  the  disability  of  banishment,  consequent  upon 
abjuration,  by  Statute  21  Jac.  I,  c.  28. 

Town  of  Baltimore  v.  Town  of  Chester,  Supreme  Court  of 
Vermont  (1881).     (53  Vt.  315.) 

Veazey,  J.:  The  term  civil  death,  as  used  in  the  books,  seemed 
to  involve,  first,  a  total  extinction  of  the  civil  rights  and  relations 
of  the  party,  so  that  he  could  neither  take  nor  hold  property,  but  his 
estate  passed  to  his  heirs  as  though  he  were  really  dead,  or  was 
forfeited  to  the  crown;  and  of  this  kind  were  the  cases  of  monks 
professed,  and  abjuration  of  the  realm.  ,  .  .  Second,  an  in- 
capacity to  hold  property,  or  to  sue  in  the  king's  courts  attended 
with  forfeiture  of  the  estate  and  corruption  of  blood ;  and  the  king 
took  the  property  to  the  exclusion  of  the  heirs. 

There  were  cases  in  the  English  law  where  the  party  was  sen- 
tenced to  perpetual  imprisonment  or  perpetual  banishment  for  an 
offense  not  attended  with  forfeiture  of  his  estate,  .  .  .  And  it 
would  seem  that  perpetual  imprisonment  or  perpetual  banishment, 
without  forfeiture  of  the  estate,  did  not  in  England  produce  civil 
death.     .     .     . 


CAPACITY  433 

As  crimes  do  not  work  a  forfeiture  of  the  estate  or  corruption  of 
blood  in  this  State,  there  is  lacking  that  taint  from  crime  which 
seems  to  have  constituted,  at  common  law,  one  of  the  essential 
elements  of  ci\il  death.     .     . 

We  ha\e  statutes  providing  what  shall  be  the  effect  of  imprison- 
ment for  crime  in  certain  respects.  A  life  sentence  operates  as  the 
natural  death  of  a  person,  so  far  as  it  in  any  way  relates  to  his 
marriage  or  the  settlement  of  his  estate.  Gen.  Stats,  ch.  120,  19. 
A  sentence  for  three  years  or  more  is  a  cause  for  divorce.  Ch.  70, 
18.  For  certain  purposes  the  wife  is  deemed  a  feme  sole  while  the 
husband  is  in  state  prison.  Ch.  71,  13.  These  seem  to  be  all  based 
on  the  principle  that  a  prisoner's  legal  rights,  subject  to  his  per- 
sonal restraint,  are  unaffected  by  the  imprisonment,  except  as 
specially  provided  by  statute. 

In  several  states  there  are  statutes  providing  that  persons  adjudged  to  im- 
prisonment for  life  shall  be  civilly  dead.  See  In  re  Nerac,  35  Cal.  392,  95  Am. 
Dec.  Ill;  Avery  v.  Everett,  110  N.  V.  317,  6  Am.  St.  Rep.  368,  1  L.  R.  A. 
264,  18  X.  E.  Rep.  148. 

3.    CAPACITY 

Complete  loss  of  legal  personality  must  be  distinguished  from  mere  incapacity 
A  person  may  have  rights  and  yet  be  incapable  of  performing  legally  valid  acts 
or  incapable  of  incurring  legal  liability  or  incapable  of  incurring  responsibility 
for  what  would  otherwise  be  accounted  violations  of  absolute  duties.  A  person 
who  is  civilly  dead  has  lost  his  legal  identity;  the  old  legal  personality  is  extinct, 
and  there  is  either  a  new  one  or  none  at  all  in  its  place.  But  a  person  whose  legal 
personality  is  unaffected  may  have  lost,  or  may  not  have  attained,  legal  capacity 
to  act  in  some  or  in  all  cases.  Accordingly,  we  distinguish  normal  persons,  per- 
sons of  full  and  complete  capacity,  and  abnormal  persons,  persons  of  partial  or 
limited  capacity.  Ancient  law  conceded  full  capacity  to  comparatively  few. 
Modern  law  aims  to  confer  full  legal  capacity  as  widely  as  possible,  and  in  gen- 
eral to  create  legal  incapacities  only  where  there  are  natural  incapacities  also. 
The  only  substantial  exception  in  our  modern  law  is  that  for  historical  reasons 
married  women  are  still  under  a  partial  legal  incapacity  in  many  jurisdictions. 
In  such  jurisdictions  they  have  only  a  limited  power  of  contracting.  With  this 
exception,  the  legal  incapacities  recognized  in  modern  law  coincide  substantially 
with  natural  incapacities.  In  our  Anglo-American  legal  system  there  are  now 
five  conditions  which  create  legal  incapacity,  total  or  partial:  (1)  infancy  or 
minority;  (2)  coverture,  or  the  condition  of  being  a  married  woman;  (3)  idiocy 
and  lunacy  or  insanity;    (4)  conviction  of  treason  or  felony;    (5)  alienage. 

Holland,  Jurisprudence,   Chap.  XIV. 

The  chief  varieties  of  status  among  natural  persons  may  be 
referred   to   the  following  causes:    1.   sex;  2.  minority;    3.  patria 


434  PERSONS 

potestas  and  ruaniis;  4.  coverture;  5.  celibacy;  6.  mental  defect;  7. 
bodily  defect;  8.  rank,  caste,  and  official  position;  9.  race  and 
color;  10.  slavery;  11.  profession;  12.  civil  death;  13.  illegiti- 
macy; 14.  heresy;  15.  foreign  nationality;  16.  hostile  nationality. 
All  of  the  facts  included  in  this  list,  which  might  be  extended,  have 
been  held,  at  one  time  or  another,  to  differentiate  the  legal  position 
of  persons  affected  by  them  from  that  of  persons  of  the  normal  type. 

There  are  three  distinct  questions  in  this  connection:  (1)  capacity  for  legal 
transactions,  that  is,  for  acts  intended  to  produce  legal  consequences  to  which  the 
law  will  attach  the  intended  consequences;  (2)  capacity  for  torts  (acts  involving 
civil  liability  for  breaches  of  rights  in  rem);  (3)  capacity  for  crimes  (breaches  of 
absolute  duties  involving  penal  consequences).  Capacity  for  rights  is  also,  in 
modern  law,  a  wholly  distinct  question. 


4.    INFANCY! 

Blackstone,  Commentaries,  I,  464. 

3.  Infants  have  various  privileges,  and  various  disabilities:  but 
their  very  disabilities  are  privileges;  in  order  to  secure  them  from 
hurting  themselves  by  their  own  improvident  acts.  An  infant  can- 
not be  sued  but  under  the  protection,  and  joining  the  name,  of  his 
guardian;  for  he  is  to  defend  him  against  all  attacks  as  well  by  law 
as  otherwise:  but  he  may  sue  either  by  his  guardian,  or  prochein 
amy,  his  next  friend  who  is  not  his  guardian.  This  prochein  amy 
may  be  any  person  who  will  undertake  the  infant's  cause,  and  it 
frequently  happens,  that  an  infant,  by  his  prochein  amy,  institutes 
a  suit  in  equity  against  a  fraudulent  guardian.  In  criminal  cases 
an  infant  of  the  age  of  fourteen  years  may  be  capitally  punished  for 
any  capital  offence:  but  under  the  age  of  seven  he  cannot.  The 
period  between  seven  and  fourteen  is  subject  to  much  uncertainty: 
for  the  infant  shall,  generally  speaking,  be  judged  prima  facie  inno- 
cent ;  yet  if  he  was  doli  capax,  and  could  discern  between  good  and 
evil  at  the  time  of  the  offense  committed,  he  may  be  convicted  and 
undergo  judgment  and  execution  of  death,  though  he  hath  not  at- 
tained to  years  of  puberty  or  discretion.  And  Sir  Matthew  Hale 
gives  us  two  instances,  one  of  a  girl  of  thirteen,  who  was  burned 
for  killing  her  mistress;  another  of  a  boy  still  younger,  that  had 
killed  his  companion,  and  hid  himself,  who  was  hanged;  for  it 
appeared  by  his  hiding  that  he  knew  he  had  done  wrong,  and  could 

^  See  Mack,  The  Juvenile  Court,  23  Harvard  Law  Rev.  104. 


INFANCY  435 

discern  between  good  and  evil:  and  in  such  cases  the  maxim  of  law 
is,  that  malitia  supplet  aetatem.  So  also,  in  much  more  modern 
times,  a  boy  of  ten  years  old,  who  was  guilty  of  a  heinous  murder, 
was  held  a  proper  subject  for  capital  punishment,  by  the  opinion  of 
all  the  judges. 

With  regard  to  estates  and  civil  property,  an  infant  hath  many 
privileges,  which  will  be  better  understood  when  we  come  to  treat 
more  particularly  of  those  matters:  but  this  may  be  said  in  general, 
that  an  infant  shall  lose  nothing  by  non-claim,  or  neglect  of  demand- 
ing his  right ;  nor  shall  any  other  laches  or  negligence  be  imputed 
to  an  infant,  except  in  some  very  particular  cases. 

It  is  generally  true,  that  an  infant  can  neither  alien  his  lands,  nor 
do  any  legal  act,  nor  make  a  deed,  nor  indeed  any  manner  of  con- 
tract that  will  bind  him.  But  still  to  all  these  rules  there  are  some 
exceptions:  part  of  which  were  just  now  mentioned  in  reckoning 
up  the  different  capacities  which  they  assume  at  different  ages:  and 
there  are  others,  a  few  of  which  it  may  not  be  improper  to  recite 
as  a  general  specimen  of  the  whole.  And  first,  it  is  true,  that  in- 
fants cannot  alien  their  estates :  but  infant  trustees  or  mortgagees, 
are  enabled  to  convey,  under  the  direction  of  the  court  of  chancery 
or  exchequer,  or  other  courts  of  equity,  the  estates  they  hold  in 
trust  or  mortgage,  to  such  person  as  the  court  shall  appoint.  Also  it 
is  generally  true,  that  an  infant  can  do  no  legal  act.  An  infant 
may  also  purchase  lands,  but  his  purchase  is  incomplete:  for  when 
he  comes  to  age,  he  may  either  agree  or  disagree  to  it,  as  he  thinks 
prudent  or  proper,  without  alleging  any  reason;  and  so  may  his 
heirs  after  him,  if  he  dies  without  having  completed  his  agreement. 
It  is,  further,  generally  true  that  an  infant,  under  twenty-one,  can 
make  no  deed  but  what  is  afterwards  voidable:  yet  in  some  cases 
he  may  bind  himself  apprentice  by  deed  indented  or  indentures, 
for  seven  years;  and  he  may  by  deed  or  will  appoint  a  guardian  to 
his  children,  if  he  has  any.  Lastly,  it  is  generally  true  that  an 
infant  can  make  no  other  contract  that  will  bind  him :  yet  he  may 
bind  himself  to  pay  for  his  necessary  meat,  drink,  apparel,  physic, 
and  other  necessaries;  and  likewise  for  his  good  teaching  and 
instruction  whereby  he  may  profit  himself  afterwards.  And  thus 
much,  at  present,  for  the  privileges  and  disabilities  of  infants. 

Snell,  Principles  of  Equity,  chap.  22,  §  4. 

The  origin  of  the  jurisdiction  of  the  Court  of  Chancery  o\er 
infants  has  been  a  matter  of  much  juridical  discussion.     The  better 


436  PERSONS 

opinion  seems  to  be,  that  this  jurisdiction  has  its  just  and  rightful 
foundation  in  the  prerogative  of  the  Crown,  flowing  from  its  general 
power  and  duty  as  parens  patrice,  to  protect  those  who  have  no 
other  lawful  protector.  Partaking,  as  it  does,  more  of  the  nature  of 
a  judicial  administration  of  rights  and  duties,  in  foro  conscienticE  than 
of  strict  executive  authority,  it  would  naturally  follow,  ea  ratione,  that 
it  should  be  exercised  in  the  Court  of  Chancery,  as  a  branch  of  the 
general  jurisdiction  originally  confided  and  delegated  to  that  court. 

If  a  bill  be  filed  or  action  commenced  relative  to  an  infant's 
estate  or  person,  the  court  acquires  jurisdiction,  and  the  infant, 
whether  plaintiff  or  defendant,  and  even  during  the  life  of  its 
father,  or  of  its  testamentary  guardian,  immediate!}'  becomes  a 
ward  of  the  court. 

The  Court  of  Chancery  will  appoint  a  suitable  guardian  to  an 
infant  where  there  is  none  other,  or  none  other  who  will  or  can  act ; 
but,  as  a  general  rule,  it  will  not  do  so  unless  where  the  infant  has 
property,  although  it  may  do  so  under  exceptional  circumstances. 
"It  is  not,  however,"  as  observed  by  Lord  Eldon,  "from  any  want 
of  jurisdiction  that  it  does  not  act  where  it  has  no  property  of  an 
infant,  but  from  a  want  of  the  means  to  exercise  its  jurisdiction, 
because  the  court  cannot  take  on  itself  the  maintenance  of  all  the 
children  in  the  kingdom.  It  can  exercise  this  jurisdiction  usefully 
and  practically  only  where  it  has  the  means  of  doing  so  —  that  is 
to  say,  by  its  having  the  means  of  applying  property  for  the  use 
and  maintenance  of  the  infant. 

In  general,  parents  are  intrusted  with  the  custody  and  education 
of  their  children,  on  the  natural  presumption  that  the  children  will, 
by  their  parents,  be  properly  treated,  and  due  care  be  taken  of  their 
education,  morals  and  religion;  but  if  the  court  has  reasonable 
grounds  for  believing  that  the  children  would  not  be  properly 
treated,  it  "would  interfere  even  with  parents,  upon  the  principle 
that  preventing  justice  is  preferable  to  punishing  justice."  But 
the  court  requires  a  strong  case  to  be  made  out  before  it  will  interfere 
with  a  father's  guardianship.  Accordingly,  where  the  father  is 
insolvent,  or  his  character  and  conduct  are  such  as  are  likely  to 
contaminate  the  morals  of  his  children,  or  where  he  is  endangering 
their  property  or  neglecting  their  education,  or  is  guilty  of  ill- 
treatment  and  cruelty  to  them,  it  is  not  a  matter  of  course  to  take 
the  father's  guardianship  away,  but  if  the  danger  to  the  children 
is  proximate  and  serious,  then  the  custody  of  the  children  will  be 
committed  to  a  person  to  act  as  guardian. 


COVERTURE  437 

The  guardian  will  be  allowed  to  regulate  the  mode  of,  and  to  select 
the  place  for,  the  education  of  his  ward,  whose  obedience  will  be 
enforced  by  the  court.  And  the  court  will  aid  guardians  in  obtain- 
ing possession  of  the  persons  of  their  wards  when  they  are  detained 
from  them. 

If  the  guardian  wishes  to  take  his  ward  out  of  the  jurisdiction  of 
the  court,  and  in  some  other  cases  where  there  is  danger  of  injury 
to  the  ward's  person  or  property,  the  court  will  always  take  security 
from  the  guardian  before  sanctioning  his  removal  out  of  the  juris- 
diction. 

[In  the  United  States  the  Probate  Courts  appoint  guardians  for 
infants  and  control  their  conduct.  The  jurisdiction  of  equity  there- 
fore, in  this  matter  is  really  not  exercised  in  most  of  the  States 
except  in  the  matter  of  relief  against  guardians  at  the  suits  of 
infants  for  their  property  or  estates.]  ^ 


5.   COVERTURE 

Blackstone,    Commentaries,    I,   442. 

By  marriage,  the  husband  and  wife  are  one  person  in  law:  that 
is,  the  very  being  or  legal  existence  of  the  woman  is  suspended 
during  the  marriage,  or  at  least  is  incorporated  and  consolidated 
into  that  of  the  husband :  under  whose  wing,  protection,  and  cover, 
she  performs  everything;  and  is  therefore  called  in  our  law-French 
a  feme-covert,  faemina  viro  co-operta;  is  said  to  be  covert-baron,  or 
under  the  protection  and  influence  of  her  husband,  her  baron,  or 
lord,  and  her  condition  during  her  marriage  is  called  her  coverture. 
Upon  this  principle,  of  a  union  of  person  in  husband  and  wife, 
depend  almost  all  the  legal  rights,  duties,  and  disabilities,  that  either 
of  them  acquire  by  the  marriage.  I  speak  not  at  present  of  the 
rights  of  property,  but  of  such  as  are  merely  personal.  For  this 
reason,  a  man  cannot  grant  anything  to  his  wife,  or  enter  into 
covenant  with  her:  for  the  grant  would  be  to  suppose  her  separate 
existence;  and  to  covenant  with  her,  would  be  only  to  covenant 
with  himself:  and  therefore  it  is  also  generally  true,  that  all  com- 
pacts made  between  husband  and  wife,  when  single,  are  voided  by 
the  intermarriage.  A  woman  indeed  may  be  attorney  for  her  hus- 
band; for  that  implies  no  separation  from,  but  is  rather  a  repre- 
sentation of,  her  lord.     And  a  husband  may  also  bequeath  anything 

'  The  portion  in  brackets  was  added  by  an  American  editor. 


438  PERSONS 

to  his  wife  by  will ;  for  that  cannot  take  effect  till  the  coverture  is 
determined  by  his  death.  The  husband  is  bound  to  provide  his  wife 
with  necessaries  by  law,  as  much  as  himself;  and,  if  she  contracts 
debts  for  them,  he  is  obliged  to  pay  them;  but  for  anything  besides 
necessaries  he  is  not  chargeable.  Also  if  a  wife  elopes,  and  lives 
with  another  man,  the  husband  is  not  chargeable  even  for  neces- 
saries; at  least  if  the  person  who  furnishes  them  is  sufficiently 
apprised  of  her  elopement.  If  the  wife  be  indebted  before  mar- 
riage, the  husband  is  bound  afterwards  to  pay  the  debt ;  for  he  has 
adopted  her  and  her  circumstances  together.  If  the  wife  be  injured 
in  her  person  or  her  property,  she  can  bring  no  action  for  redress 
without  her  husband's  concurrence,  and  in  his  name,  as  well  as  her 
own:  neither  can  she  be  sued  without  making  the  husband  a  defend- 
ant. There  is  indeed  one  case  where  the  wife  shall  sue  and  be 
sued  as  a  feme  sole,  viz.  where  the  husband  has  abjured  the  realm, 
or  is  banished,  for  then  he  is  dead  in  law;  and,  the  husband  being 
thus  disabled  to  sue  for  or  defend  the  wife,  it  would  be  most  un- 
reasonable if  she  had  no  remedy,  or  could  make  no  defense  at  all. 
In  criminal  prosecutions,  it  is  true,  the  wife  may  be  indicted  and 
punished  separately;  for  the  union  is  only  a  civil  union.  But  in 
trials  of  any  sort  they  are  not  allowed  to  be  witnesses  for,  or  against, 
each  other:  partly  because  it  is  impossible  their  testimony  should 
be  indifferent,  but  principally  because  of  the  union  of  person;  and 
therefore,  if  they  were  admitted  to  be  witnesses  for  each  other, 
they  would  contradict  one  maxim  of  law,  ''nemo  in  propria  causa 
testis  esse  debet;''  and  if  against  each  other,  they  would  contradict 
another  maxim,  "nemo  tenetur  seipsum  acctisare."  But  where  the 
offense  is  directly  against  the  person  of  the  wife,  this  rule  has  been 
usually  dispensed  with;  and  therefore,  by  statute  3  Hen.  VII.  c.  2, 
in  case  a  woman  be  forcibly  taken  away,  and  married,  she  may  be 
a  witness  against  such  her  husband,  in  order  to  convict  him  of 
felony.  For  in  this  case  she  can  with  no  propriety  be  reckoned  liis 
wife:  because  a  main  ingredient,  her  consent,  was  wanting  to  the 
contract:  and  also  there  is  another  maxim  of  law,  that  no  man  shall 
take  advantage  of  his  own  wrong ;  which  the  ravishcr  here  would  do, 
if,  by  forcibly  marrying  a  woman,  he  could  ]M-event  her  from  being 
a  witness  who  is  perhaps  the  only  witness  to  that  very  fact. 

In  the  ci\al  law  the  husband  and  the  wife  are  considered  as  two 
distinct  persons,  and  may  have  separate  estates,  contracts,  debts, 
and  injuries;  and  therefore,  in  our  ecclesiastical  courts,  a  w^oman 
may  sue  and  be  sued  without  her  husband. 


COVERTl  RE  439 

But  though  our  law  in  general  considers  man  and  wife  as  one 
person,  yet  there  are  some  instances  in  which  she  is  separately  con- 
sidered; as  inferior  to  him,  and  acting  by  his  compulsion.  And 
therefore  all  deeds  executed  and  acts  done  by  her,  during  her  cover- 
ture, are  void;  except  it  be  a  fine  or  the  like  matter  of  record,  in 
which  case  she  must  be  solely  and  secretly  examined,  to  learn  if  her 
act  be  voluntary.  She  cannot  by  will  devise  lands  to  her  husband, 
unless  under  special  circumstances;  for  at  the  time  of  making  it 
she  is  supposed  to  be  under  his  coercion.  And  in  some  felonies,  and 
other  inferior  crimes,  committed  by  her,  through  constraint  of  her 
husband,  the  law  excuses  her:  but  this  extends  not  to  treason  or 
murder. 

The  husband  also,  by  the  old  law,  might  give  his  wife  moderate 
correction.  For  as  he  is  to  answer  for  her  misbehavior,  the  law 
thought  it  reasonable  to  intrust  him  with  this  power  of  restraining 
her,  by  domestic  chastisement,  in  the  same  moderation  that  a  man 
is  allowed  to  correct  his  apprentices  or  children;  for  whom  the 
master  or  parent  is  also  liable,  in  some  cases,  to  answer.  But  this 
power  of  correction  was  confined  within  reasonable  bounds,  and  the 
husband  was  prohibited  from  using  any  violence  to  his  wife,  aliter 
quam  ad  virum,  ex  causa  regiminis  et  castigationis  uxoris  sucb,  licite 
et  rationahiliter  pertinet.  The  civil  law  gave  the  husband  the  same, 
or  a  larger,  authority  over  his  wife:  allowing  him,  for  some  mis- 
demeanors, flageUis  et  fustibiis  acriter  verberare  uxoreni;  for  others, 
only  modicum  castigationem  adhibere.  But  with  us,  in  the  politer 
reign  of  Charles  the  Second,  this  power  of  correction  began  to  be 
doubted ;  and  a  wife  may  now  have  security  of  the  peace  against 
her  husband  or,  in  return,  a  husband  against  his  wife.  Yet  the 
lower  rank  of  people,  who  were  always  fond  of  the  old  common 
law,  still  claim  and  exert  their  ancient  privilege:  and  the  courts  of 
law  will  still  permit  a  husband  to  restrain  a  wife  of  her  liberty,  in 
case  of  any  gross  misbehavior. 

Dicey,  Law  and  Opinion  in  England,  373-381. 

In  1800  the  Court  of  Chancery  had  been  engaged  for  centuries  in 
the  endeavor  to  make  it  possible  for  a  married  woman  to  hold  prop- 
erty independently  of  her  husband,  and  to  exert  over  this  property 
the  rights  which  could  be  exercised  by  a  man  or  an  unmarried 
woman.  Let  it,  however,  be  noted,  that  the  aim  of  the  Court  of 
Chancery  had  throughout  been  not  so  much  to  increase  the 
property  rights  of  married  women  generally  as  to  enable  a  person 


440  PERSONS 

(e.g.  a  father)  who  gave  to,  or  settled  property  on  a  woman,  to 
ensure  that  she,  even  though  married,  should  possess  it  as  her  own, 
and  be  able  to  deal  with  it  separately  from,  and  independenth'  of, 
her  husband,  who,  be  it  added,  was,  in  the  view  of  equity  lawyers, 
the  "enemy"  against  whose  exorbitant  common-law  rights  the 
Court  of  Chancery  waged  constant  war.  By  the  early  part  of  the 
nineteenth  century,  and  certainly  before  any  of  the  Married 
Women's  Property  Acts,  1870-1893,  came  into  operation,  the  Court 
of  Chancery  had  completely  achieved  its  object.  A  long  course  of 
judicial  legislation  had  at  last  given  to  a  woman,  over  property 
settled  for  her  separate  use,  nearly  all  the  rights,  and  a  good  deal 
more  than  the  protection,  possessed  in  respect  of  any  propert\^  by 
a  man  or  a  feme  sole.  This  success  was  achieved,  after  the  manner 
of  the  best  judge-made  law,  by  the  systematic  and  ingenious  de- 
velopment of  one  simple  principle  —  namely,  the  principle  that, 
even  though  a  person  might  not  be  able  to  hold  property  of  his  own, 
it  might  be  held  for  his  benefit  by  a  trustee  whose  sole  duty  it  was 
to  carry  out  the  terms  of  the  trust.  Hence,  as  regards  the  property 
of  married  women,  the  following  result.-,  which  were  attained  only 
by  degrees. 

Property  given  to  a  trustee  for  the  separate  use  of  a  woman, 
whether  before  or  after  marriage,  is  her  separate  property  — ■  that 
is,  it  is  property  which  does  not  in  any  way  belong  to  the  husband. 
At  common  law  indeed  it  is  the  property  of  the  trustee,  but  it  is 
property  which  he  is  bound  in  equity  to  deal  with  according  to  the 
terms  of  the  trust,  and  therefore  in  accordance  with  the  wishes  or 
directions  of  the  woman.  Here  we  have  constituted  the  "separate 
property,"  or  the  "separate  estate"  of  a  married  woman. 

If,  as  might  happen,  property  was  given  to  or  settled  upon  a 
woman  for  her  separate  use,  but  no  trustee  were  appointed,  then 
the  Court  of  Chancery  further  established  that  the  husband  him- 
self, just  because  he  was  at  common  law  the  legal  owner  of  the 
property,  must  hold  it  as  trustee  for  his  wife.  It  was  still  her 
separate  property,  and  he  was  bound  to  deal  with  it  in  accordance 
with  the  terms  of  the  trust,  i.e.  as  property  settled  upon  or  given 
to  her  for  her  separate  use.  The  Court  of  Chancery  having  thus 
created  separate  property  for  a  married  woman,  by  degrees  worked 
out  to  its  full  result  the  idea  that  a  trustee  must  deal  with  the 
property  of  a  married  woman  in  accordance  with  her  directions. 
Thus  the  Court  gave  her  the  power  to  give  away  or  sell  her  separate 
property,  as  also  to  leave  it  to  whomsoever  she  wished  by  will,  and 


COVERTURE  441 

further  enabled  her  to  charge  it  with  her  contracts.  With  regard  to 
such  property,  in  short,  equity  at  last  gave  her,  though  in  a  round- 
about way,  nearly  all  the  rights  of  a  single  woman.  But  equity 
lawyers  came  to  perceive,  somewhere  towards  the  beginning  of 
the  nineteenth  century,  that  though  they  had  achieved  all  this, 
they  had  not  given  quite  sufficient  protection  to  the  settled  property 
of  a  married  woman.  Her  very  possession  of  the  power  to  deal 
freely  with  her  separate  property  might  thwart  the  object  for 
which  that  separate  property  had  been  created ;  for  it  might  enable 
a  husband  to  get  her  property  into  his  hands.  Who  could  guarantee 
that  Barry  Lyndon  might  not  persuade  or  compel  his  wife  to  make 
her  separate  property  chargeable  for  his  debts,  or  to  sell  it  and  give 
him  the  proceeds?  This  one  weak  point  in  the  defenses  which 
equity  had  thrown  up  against  the  attacks  of  the  enemy  was  rendered 
unassailable  by  the  astuteness,  as  it  is  said,  of  Lord  Thurlow.  He 
invented  the  provision,  constantly  since  his  time  introduced  into 
marriage  settlements  or  wills,  which  is  known  as  the  restraint  on 
anticipation.  This  clause,  if  it  forms  part  of  the  document  settling 
property  upon  a  woman  for  her  separate  use,  makes  it  impossible 
for  her  during  coverture  either  to  alienate  the  property  or  to  charge 
it  with  her  debts.  Whilst  she  is  married  she  cannot,  in  short,  in 
any  way  anticipate  her  income,  though  in  every  other  respect  she 
may  deal  with  the  property  as  her  own.  She  may,  for  example, 
bequeath  or  devise  her  property  by  will,  since  the  bequest  or  devise 
will  have  no  operation  till  marriage  has  come  to  an  end.  But  this 
restraint,  or  fetter,  operates  only  during  coverture.  It  in  no  way 
touches  the  property  rights  either  of  a  spinster  or  of  a  widow.  The 
final  result,  then,  of  the  judicial  legislation  carried  through  by  the 
Court  of  Chancery  was  this.  A  married  woman  could  possess 
separate  property  over  which  her  husband  had  no  control  what- 
ever. She  could,  if  it  was  not  subject  to  a  restraint  on  anticipation, 
dispose  of  it  wdth  perfect  freedom.  If  it  was  subject  to  such 
restraint,  she  was,  during  coverture,  unable  to  exercise  the  full 
rights  of  an  owner,  but  in  compensation  she  was  absolutely  guarded 
against  the  possible  exactions  or  persuasions  of  her  husband,  and 
received  a  kind  of  protection  which  the  law  of  England  does  not 
provide  for  any  other  person  except  a  married  woman. 

It  is  often  said,  even  by  eminent  lawyers,  that  a  married  woman 
was  in  respect  of  her  separate  property  made  in  equity  a  feme  sole. 
But  this  statement,  though  broadly  speaking  true,  is  not  accurate, 
and  conceals  from  view  the  fact  (which  is  of  importance  to  a  student 


442  PERSONS 

who  wishes  to  understand  the  way  in  which  equity  has  told  upon 
the  form  and  substance  of  the  Married  Women's  Property  Acts, 
1870-1893)  that  the  process  of  judicial  legislation  which  gave  to 
a  married  woman  a  separate  estate,  led  to  some  very  singular 
results.     Three  examples  will  make  plain  my  meaning. 

First. —  The  restraint  on  anticipation  which  today,  no  less  than 
before  1870,  is  constantly  to  be  found  in  marriage  settlements,  has 
(as  already  pointed  out)  given  to  a  married  woman  a  strictly 
anomalous  kind  of  protection. 

Secondly. —  Equity,  whilst  conferring  upon  a  married  woman  the 
power  to  dispose  of  her  separate  property  by  will,  gave  her  no 
testamentary  capacity  with  respect  to  any  property  which  was  not 
in  technical  strictness  separate  property.     .     .     . 

Thirdly. —  Equity  never  in  strictness  gave  a  married  woman  con- 
tractual capacity ;  it  never  gave  her  power  to  make  during  coverture 
a  contract  which  bound  herself  personally.  What  it  did  do  was 
this:  it  gave  her  power  to  make  a  contract,  e.g.  incur  a  debt,  on 
the  credit  of  separate  property  which  belonged  to  her  at  the  time 
when  the  debt  was  incurred,  and  it  rendered  such  separate  property 
liable  to  satisfy  the  debt.  Hence  two  curious  consequences.  The 
contract  of  a  married  woman,  in  the  first  place,  even  though  in- 
tended to  bind  her  separate  property,  did  not  in  equity  bind  any 
property  of  which  she  was  not  possessed  at  the  moment  when  she 
made  the  contract,  e.g.  incurred  a  debt.  The  contract  of  a  married 
woman,  in  the  second  place,  if  made  when  she  possessed  no  separate 
property,  in  no  way  bound  any  separate  property,  or  indeed  any 
property  whatever  of  which  she  might  subsequently  become 
possessed. 

In  spite,  however,  of  these  anomalies,  there  would  have  been 
little  to  complain  of  in  the  law,  with  regard  to  the  property  of 
married  women,  if  the  Court  of  Chancery  had  been  able  to  supersede 
the  common  law  and  to  extend  to  all  women  on  their  marriage  the 
protection  which  the  rules  of  equity  provided  for  any  woman  whose 
property  was  the  subject  of  a  marriage  settlement.  But  the  way 
in  which  equity  was  developed  as  a  body  of  rules,  which  in  theory 
followed  and  supplemented  the  common  law,  made  such  a  thorough- 
going reform,  as  would  have  been  involved  in  the  superseding  of 
the  common  law,  an  impossibility.  As  regards  a  married  woman's 
property  the  two  systems  of  common  law  and  of  equity  co-existed 
side  by  side  unconfus(;d  and  unmingled  till  the  reform  introduced 


COVERTURE  443 

by  the  Married  Women's  Property  Acts.  Hence  was  created  in 
practice  a  singular  and  probably  unforeseen  inequality  between 
the  position  of  the  rich  and  the  position  of  the  poor.  A  woman  who 
married  with  a  marriage  settlement,  —  that  is,  speaking  broadly, 
almost  e\ery  woman  who  belonged  to  the  wealthy  classes,  — 
retained  as  her  own  any  property  which  she  possessed  at  the  time 
of  marriage,  or  which  came  to  her,  or  was  acquired  by  her  during 
coverture.  She  was  also,  more  generally  than  not,  amply  protected 
by  the  restraint  on  anticipation  against  both  her  own  weakness 
and  her  husband's  extravagance  or  rapacity.  A  woman,  on  the 
other  hand,  who  married  without  a  marriage  settlement- — -that 
is,  speaking  broadly,  every  woman  belonging  to  the  less  wealthy 
or  the  poorer  classes  — •  was  by  her  marriage  deprived  of  the  whole 
of  her  income,  and  in  all  probability  of  the  whole  of  her  property. 
The  earnings  acquired  by  her  own  labor  were  not  her  own,  but 
belonged  to  her  husband.  There  came,  therefore,  to  be  not  in 
theory  but  in  fact  one  law  for  the  rich  and  another  for  the  poor. 
The  daughters  of  the  rich  enjoyed,  for  the  most  part,  the  con- 
siderate protection  of  equity,  the  daughters  of  the  poor  suffered 
under  the  severity  and  injustice  of  the  common  law. 

New  York  Domestic  Relations  Law,  §§  50,  51. 

§  50.  Property,  real  or  personal,  now  owned  by  a  married 
woman,  or  hereafter  owned  by  a  woman  at  the  time  of  her  marriage, 
or  acquired  by  her  as  prescribed  in  this  chapter,  and  the  rents,  issues, 
proceeds  and  profits  thereof,  shall  continue  to  be  her  sole  and  separate 
property  as  if  she  were  unmarried,  and  shall  not  be  subject  to  her 
husband's  control  or  disposal  nor  liable  for  his  debts. 

§  51.  A  married  woman  has  all  the  rights  in  respect  to  property, 
real  or  personal,  and  the  acquisition,  use,  enjoyment  and  disposition 
thereof,  and  to  make  contracts  in  respect  thereto  with  any  person, 
including  her  husband,  and  to  carry  on  any  business,  trade  or 
occupation,  and  to  exercise  all  powers  and  enjoy  all  rights  in  respect 
thereto  and  in  respect  to  her  contracts,  and  be  liable  on  such  con- 
tracts, as  if  she  were  unmarried ;  but  a  husband  and  wife  can  not 
contract  to  alter  or  dissolve  the  marriage  or  to  relieve  the  husband 
from  his  liability  to  support  his  wife.  All  sums  that  may  be 
recovered  in  actions  or  special  proceedings  by  a  married  woman 
to  recover  damages  to  her  person,  estate  or  character  shall  be  the 
separate  property  of  the  wUe.  Judgment  for  or  against  a  married 
woman,  may  be  rendered  and  enforced,  in  a  court  of  record,  or  not 


444  PERSONS 

of  record,  as  if  she  was  single.  A  married  woman  may  confess  a 
judgment  specified  in  section  one  thousand  two  hundred  and 
seventy-three  of  the  code  of  civil  procedure. 

6.   LUNACY,  IDIOCY 

Blackstone,  Commentaries,  I,  304. 

A  lunatic,  or  7ion  compos  mentis,  is  one  who  hath  had  understand- 
ing but  by  disease,  grief,  or  other  accident,  hath  lost  the  use  of 
his  reason.  A  lunatic  is  indeed  properly  one  that  hath  lucid  inter- 
vals, sometimes  enjoying  his  senses,  and  sometimes  not,  and  that 
frequently  depending  upon  the  change  of  the  moon.  But  under  the 
general  name  of  no7i  compos  mentis  (which  Sir  Edward  Coke  says 
is  the  most  legal  name)  are  comprised  not  only  lunatics,  but  persons 
under  frenzies;  or  who  lose  their  intellects  by  disease;  those,  that 
grow  deaf,  dumb,  and  blind,  not  being  born  so;  or  such,  in  short,  as 
are  judged  by  the  court  of  chancery  incapable  of  conducting  their 
own  affairs.  To  these  also,  as  well  as  idiots,  the  king  is  guardian, 
but  to  a  very  different  purpose.  For  the  law  always  imagines  that 
these  accidental  misfortunes  may  be  removed;  and  therefore  only 
constitutes  the  crown  a  trustee  for  the  unfortunate  persons,  to  pro- 
tect their  property,  and  to  account  to  them  for  all  profits  received,  if 
they  recover,  or  after  their  decease  to  their  representatives.  And 
therefore  it  is  declared  by  the  statute  17  Edw.  II.  c.  10,  that  the 
king  shall  provide  for  the  custody  and  sustentation  of  lunatics,  and 
preserve  their  lands  and  the  profits  of  them  for  their  use,  when 
they  come  to  their  right  mind ;  and  the  king  shall  take  nothing  to 
his  own  use;  and,  if  the  parties  die  in  such  estate,  the  residue  shall 
be  distributed  for  their  souls  by  the  ad\ice  of  the  ordinary,  and  of 
course  (by  the  subsequent  amendments  of  the  law  of  administration) 
shall  now  go  to  their  executors  or  administrators. 

On  the  first  attack  of  lunacy,  or  other  occasional  insanity,  while 
there  may  be  hope  of  a  speedy  restitution  of  reason,  it  is  usual  to 
confine  the  unhappy  objects  in  private  custody  under  the  direction 
of  their  nearest  friends  and  relations;  and  the  legislature,  to  prevent 
all  abuses, incident  to  such  private  custody,  hath  thought  proper 
to  interpose  its  authority  by  statute  14  Geo.  III.  c.  49,  (continued 
by  19  Geo.  III.  c.  15,)  for  regulating  private  madhouses.  But 
when  the  disorder  is  grown  permanent,  and  the  circumstances  of 
the  party  will  bear  such  additional  expense,  it  is  ])roper  to  apply  to 
the  royal  authority  to  warrant  a  lasting  confinement. 


CONVICTION  OF  FELONY  445 

The  method  of  proving  a  person  wow  compos  is  very  similar  to 
that  of  proving  him  an  idiot.  The  lord  chancellor,  to  whom,  by 
special  authority  from  the  king,  the  custody  of  idiots  and  lunatics 
is  intrusted,  upon  petition  or  information,  grants  a  commission  in 
nature  of  the  writ  de  idiota  ivquirendo,  to  inquire  into  the  party's 
state  of  mind ;  and  if  he  be  found  non  compos,  he  usually  commits 
the  care  of  his  person,  with  a  suitable  allowance  for  his  maintenance, 
to  some  friend,  who  is  then  called  his  committee. 


7.     CONVICTION  OF  FELONY 

Presburv  v.  Hull,  Supreme  Court  of  Missouri,  1863  (34  Mo. 
29.) 

Bates,  J.:  The  statute  of  Missouri  which  enacts  that  a  sentence 
of  imprisonment  in  the  penitentiary  for  a  term  of  less  than  life, 
suspends  all  civil  rights  of  the  person  so  sentenced  during  the  term 
thereof,  applies  only  to  sentences  in  the  State  courts.  We  know 
of  no  similar  act  as  to  sentences  by  the  Federal  courts,  and  without 
such  act  there  is  no  such  suspension.  A  sentence  for  life  even  would 
not  have  the  effect  of  making  the  convict  civilly  dead.  {Plainer 
V.  Sherwood,  6  John.  Chy.  118.)  Here  the  sentence  was  for  one 
year. 

It  is  of  no  consequence  that  Wolff's  offense  might  have  been 
punished  by  a  State  court  (if  it  be  so) ;  for  it  is  not  the  fact  of 
criminality  which,  in  any  case,  suspends  his  rights,  but  the  con- 
viction and  sentence  to  the  penitentiary. 

Blackstone,   Commentaries,   IV,  380,  388. 

When  sentence  of  death,  the  most  terrible  and  highest  judgment 
in  the  laws  of  England,  is  pronounced,  the  immediate  inseparable 
consequence  from  the  common  law  is  attainder.  For  when  it  is  now 
clear  beyond  all  dispute  that  the  criminal  is  no  longer  fit  to  live  upon 
the  earth,  but  is  to  be  exterminated  as  a  monster  and  a  bane  to 
human  society,  the  law  sets  a  note  of  infamy  upon  him,  puts 
him  out  of  its  protection,  and  takes  no  further  care  of  him  than 
barely  to  see  him  executed.  He  is  then  called  attaint,  attinctus, 
stained  or  blackened.  He  is  no  longer  of  any  credit  or  reputation; 
he  cannot  be  a  witness  in  any  court;  neither  is  he  capable  of  per- 
forming the  functions  of  another  man;  for,  by  an  anticipation  of 
his  punishment,  he  is  already  dead  in  law.     This  is  after  judgment; 


446  PERSONS 

for  there  is  great  difference  between  a  man  convicted  and  attained : 
though  they  are  frequently,  through  inaccuracy ,  confounded  together. 
After  conviction  only,  a  man  is  liable  to  none  of  these  disabilities; 
for  there  is  still  in  contemplation  of  law  a  possibility  of  his  inno- 
cence. Somethingmay  be  offered  in  arrest  of  judgment;  the  indict- 
ment may  be  erroneous,  which  will  render  his  guilt  uncertain,  and 
thereupon  the  present  con\iction  may  be  quashed ;  he  may  obtain  a 
pardon,  or  be  allowed  the  benefit  of  clergy ;  both  which  suppose  some 
latent  sparks  of  merit  which  plead  in  extenuation  of  his  fault.  Eut 
when  judgment  is  once  pronounced,  both  law  and  fact  conspire  to 
prove  him  completely  guilty;  and  there  is  not  the  remotest  possi- 
bihty  left  of  anything  to  be  said  in  his  favor.  Upon  judgment, 
therefore,  of  death,  and  not  before,  the  attainder  of  a  criminal  com- 
mences; or  upon  such  circumstances  as  are  equivalent  to  judgment 
of  death;  as  judgment  of  outlawry  on  a  capital  crime  pronounced 
for  absconding  or  fleeing  from  justice,  which  tacitly  confesses  the 
guilt.  And  therefore,  either  upon  judgment  of  outlawr>%  or  of 
death,  for  treason  or  felony,  a  man  shall  be  said  to  be  attainted. 
The  consequences  of  attainder  are  forfeiture  and  corruption  of 
blood. 

Another  immediate  consequence  of  attainder  is  the  corruption  of 
blood,  both  upwards  and  downwards,  so  that  an  attainted  person 
can  neither  inherit  lands  or  other  hereditaments  from  his  ancestors, 
nor  retain  those  he  is  already  in  possession  of,  nor  transmit  them 
by  descent  to  any  heir;  but  the  same  shall  escheat  to  the  lord  of 
the  fee,  subject  to  the  king's  superior  right  of  forfeiture:  and  the 
person  attainted  shall  also  obstruct  all  descents  to  his  posterity, 
wherever  they  are  obliged  to  derive  a  title  through  him  to  a  remoter 
ancestor. 

[Forfeiture  and  corruption  of  blood  are  now  abolished.] 


8.     ALIENAGE 

Kent,    Commentaries,    II,  53,  61,  63. 

We  proceed  next  to  consider  the  disabilities,  rights,  and  duties 
of  aliens. 

(1)  Disabilities  of  Aliens.  —  An  alien  cannot  acquire  a  title  to 
real  property  by  descent,  or  created  by  other  mere  operation  of  law. 
The  law  quae  nihil  frustra  never  casts  the  freehold  upon  an  alien 
heir  who  cannot  keep  it.     This  is  a  well-settled  rule  of  the  common 


ALIENAGE  447 

law.  The  right  to  real  estate  by  descent  is  governed  by  the  munici- 
pal law  of  the  individual  states.  Nor  can  an  alien  take  as  tenant 
by  the  curtesy  or  in  dower.  It  is  understood  to  be  the  general  rule, 
that  even  a  natural-boi  .1  subject  cannot  take  by  representation  from 
an  alien,  because  the  alien  has  no  inheritable  blood  through  which 
a  title  can  be  deduced.  If  an  alien  purchase  land,  or  if  land  be 
devised  to  him,  the  general  rule  is,  that  in  these  cases  he  may  take 
and  hold,  until  an  inquest  of  office  has  been  held ;  but  upon  his  death 
the  land  would  instantly  and  of  necessity  (as  the  freehold  cannot  be 
kept  in  abeyance),  without  any  inquest  of  office,  escheat  and  vest  in 
the  state,  because  he  is  incompetent  to  transmit  by  hereditary  descent. 

Though  an  alien  may  purchase  land,  or  take  it  by  devise,  yet  he  is 
exposed  to  the  danger  of  being  divested  of  the  fee,  and  of  having 
his  lands  forfeited  to  the  state,  upon  an  inquest  of  office  found. 
His  title  will  be  good  against  every  person  but  the  state,  and  if  he 
dies  before  any  such  proceeding  be  had,  we  have  seen  that  the  in- 
heritance cannot  descend,  but  escheats,  of  course.  If  the  alien 
should  undertake  to  sell  to  a  citizen,  yet  the  prerogative  right  of 
forfeiture  is  not  barred  by  the  alienation,  and  it  must  be  taken  to 
be  subject  to  the  right  of  the  government  to  seize  the  land.  His 
conveyance  is  good  as  against  himself,  and  he  may,  by  a  fine,  bar 
persons  in  revision  and  remainder,  but  the  title  is  still  voidable  by 
the  sovereign  upon  office  found. 

Aliens  are  capable  of  acquiring,  holding,  and  transmitting  mov- 
able property,  in  like  manner  as  our  own  citizens,  and  they  can 
bring  suits  for  the  recovery  and  protection  of  that  property.  They 
may  even  take  a  mortgage  upon  real  estate  by  way  of  security  for 
a  debt,  and  this  I  apprehend  they  may  do  without  any  statutory 
permission,  for  it  has  been  the  English  law  from  the  early  ages. 
It  is  also  so  held  in  the  Supreme  Court  of  the  United  States,  and 
that  the  alien  creditor  is  entitled  to  come  into  a  court  of  equity  to 
have  the  mortgage  foreclosed,  and  the  lands  sold  for  the  payment 
of  his  debt.  The  question  whether  the  alien  in  such  a  case  could 
become  a  valid  purchaser  of  the  mortgaged  premises  sold  at  auction 
at  his  instance,  is  left  untouched ;  and  as  such  privilege  is  not  nec- 
essary for  his  security,  and  would  be  in  contravention  of  the  gen- 
eral policy  of  common  law,  the  better  opinion  would  seem  to  be 
that  he  could  not,  in  that  way,  without  special  provision  by  statute, 
become  the  permanent  and  absolute  owner  of  the  fee. 

Even  alien  enemies,  resident  in  the  country,  may  sue  and  be  sued 
as  in  time  of  peace ;  for  protection  to  their  persons  and  property  is 


448  PERSONS 

due  and  implied  from  the  permission  to  them  to  remain,  without 
being  ordered  out  of  the  country  by  the  President  of  the  United 
States.  The  lawful  residence  does,  pro  hac  vice,  relieve  the  alien 
from  the  character  of  an  enemy,  and  entitles  his  person  and  property 
to  protection.  The  effect  of  war  upon  the  rights  of  aliens  we  need 
not  here  discuss,  as  it  has  been  already  considered  in  a  former 
part  of  this  course  of  lectures,  when  treating  of  the  law  of  nations. 

During  the  residence  of  aliens  amongst  us,  they  owe  a  local 
allegiance,  and  are  equally  bound  with  natives  to  obey  all  general 
laws  for  the  maintenance  of  peace  and  the  preservation  of  order,  and 
which  do  not  relate  specially  to  our  own  citizens.  This  is  a  prin- 
ciple of  justice  and  of  public  safety  universally  adopted ;  and  if  they 
are  guilty  of  any  illegal  act,  or  involved  in  disputes  with  our  citi- 
zens, or  with  each  other,  they  are  amenable  to  the  ordinary  tribunals 
of  the  country. 

9.     JURISTIC   PERSONS  1 

Gareis,  Science  of  Law  (Kocourek's  translation)   §  15. 

There  are,  however,  certain  entities  which  are  not  human  beings 
and  which  still  have  interests  to  which  the  law  assigns  legal  pro- 
tection. In  other  words,  legal  systems  recognize  the  possession  of 
rights  which  are  not  interests  of  individual  persons  but  of  other 
entities,  or  aggregates  of  persons  or  property. 

It  is  not  necessary  that  legal  systems  shall  create  such  interests. 
The  ideals  and  necessities  of  mankind  recognize  them  before  the 
law.  Legal  order  under  certain  conditions  invests  such  interests 
as  are  found  to  exist  in  fact  with  the  protection  necessary  to  trans- 
form such  interests  into  legal  advantages.  The  entities  whose 
preterhuman  interests  are  in  such  manner  protected  are  called 
juristic  (fictitious,  artificial,  or  moral)  persons  in  contradistinction 
to  natural  persons.  Juristic  persons  are  either  aggregates  of  persons 
{iinwersitates  personarum)  or  aggregates  of  things  (universitates 
rerum) . 

Private  law  recognizes  the  following  classes  of  juristic  persons:  — 

\.  The  state,  or  the  governing  social  entity,  in  its  private  legal 
relations.  In  this  aspect  the  dominant  entity  does  not  authorita- 
tively represent  its  interests  by  virtue  of  its  attribute  of  sovereignty. 

'  Gierke,  Political  Theories  of  the  Middle  Age  (Maitland's  translation),  xviii- 
xiiii;  Markby,  Elements  of  Law,  §§  131-135;  Salmond,  Jurisprudence,  §§  115- 
120. 


JURISTIC  PERSONS  449 

Its  activity  here  is  the  same  as  that  of  any  free  citizen  in  the  state 
in  the  satisfaction  of  private  economic  necessities.  In  this  activity 
a  state  is  called  the  fisciis,  or  treasury,  in  contradistinction  to  the 
activity  in  which  the  state  represents  public  interests  of  the  com- 
munity by  sovereign  law  in  the  governing  sense  {res  publico). 

2.  Public  communities  within  the  state,  which  represent  public 
interests;  thus,  municipalities,  parishes,  towns,  provinces  and 
similar  communities. 

3.  Aggregates  of  persons,  such  as  associations  (corporations) 
arising  from  joint  concurrence  or  agreement,  which  have  legal 
interests,  in  that  the  law  gives  them  a  legal  position.  According 
to  the  conditions  of  the  legal  recognition  of  their  juristic  personality 
such  corporations  {collegia  corpora)  are:  guilds  and  industrial 
fraternities,  and  those  privileged  aggregates  of  persons  which  are 
under  state  supervision  {collegia  sodalicia) ;  for  example,  the 
Roman  collegia  funeraticia,  and  modern  associations  for  accident, 
age  and  health  insurance  in  the  German  Empire.  These  associa- 
tions under  state  recognition  have  social  objects  as  opposed  to 
objects  of  the  state  or  of  individuals. 

4.  Associations  for  profit  {societates  quaestuariae) ,  which  the  law 
specially  invests  with  the  capacity  for  having  rights;  thus,  share 
companies,  registered  associations,  and  mining  companies,  in  the 
modern  law. 

5.  Churches,  churchly  associations  and  institutions. 

6.  Foundations,  that  is,  complexes  of  property  which  are 
recognized  by  the  law  as  holders  of  rights  for  the  accomplishment 
of  certain  limited  objects:    piae  causae,  etc. 

Kent,  Commentaries,  II,  268,  273,  274. 

A  corporation  is  a  franchise  possessed  by  one  or  more  individuals, 
who  subsist,  as  a  body  politic,  under  a  special  denomination,  and 
are  vested,  by  the  policy  of  the  law,  with  the  capacity  of  perpetual 
succession,  and  of  acting  in  several  respects,  however  numerous 
the  association  may  be,  as  a  single  individual. 

The  object  of  the  institution  is  to  enable  the  members  to  act  by 
one  united  will,  and  to  continue  their  joint  powers  and  property  in 
the  same  body,  undisturbed  by  the  change  of  members,  and  without 
the  necessity  of  perpetual  conveyances,  as  the  rights  of  members 
pass  from  one  individual  to  another.  All  the  individuals  composing 
a  corporation,  and  their  successors,  are  considered  in  law  as  but 
one  person,  capable,  under  an  artificial  form,  of  taking  and  conveying 


450  PERSONS 

property,  contracting  debts  and  duties,  and  of  enjoying  a  variety 
of  ci\"il  and  political  rights.  One  of  the  peculiar  properties  of  a  cor- 
poration is  the  power  of  perpetual  succession;  for,  in  judgment 
of  law,  it  is  capable  of  indefinite  duration.  The  rights  and  privi- 
leges of  the  corporation  do  not  determine  or  vary,  upon  the  death 
or  change  of  any  of  the  individual  members.  They  continue  as  long 
as  the  corporation  endures. 

It  is  sometimes  said  that  a  corporation  is  an  immortal  as  well 
as  an  invisible  and  intangible  being.  But  the  immortality  of  a 
corporation  means  only  its  capacity  to  take  in  perpetual  succession 
so  long  as  the  corporation  exists.  It  is  so  far  from  being  immortal, 
that  it  is  well  known  that  most  of  the  private  corporations  recenth' 
created  by  statute  are  limited  in  duration  to  a  few  years.  There 
are  many  corporate  bodies  that  are  without  limitation,  and,  conse- 
quently, capable  of  continuing  so  long  as  a  succession  of  individual 
members  of  tjie  corporation  remains  and  can  be  kept  up. 

Corporations  are  divided  into  aggregate  and  sole.  A  corporation 
sole  consists  of  a  single  person,  who  is  made  a  body  corporate  and 
politic,  in  order  to  give  him  some  legal  capacities  and  advantages, 
and  especially  that  of  perpetuity,  which  as  a  natural  person,  he 
cannot  have.  A  bishop,  dean,  parson,  and  vicar  are  given  in  the 
English  books  as  instances  of  sole  corporation;  and  they  and  their 
successors  in  perpetuity  take  the  corporate  property  and  privileges ; 
and  the  word  "successors"  is  generally  as  necessary  for  the  succes- 
sion of  property  in  a  corporation  sole,  as  the  word  "heirs"  is  to 
create  an  estate  of  inheritance  in  a  private  individual.  A  fee  will 
pass  to  a  corporation  aggregate,  without  the  word  "successors"  in 
the  grant,  because  it  is  a  body  which,  in  its  nature,  is  perpetual; 
but,  as  a  general  rule,  a  fee  will  not  pass  to  a  corporation  sole, 
without  the  word  "successors,"  and  it  will  continue  for  the  life  only 
of  the  individual  clothed  with  the  corporate  character.  There  are 
very  few  points  of  corporation  law  applicable  to  a  corporation  sole. 

Another  di\ision  of  corporations,  by  the  English  law,  is  into 
ecclesiastical  and  lay.  The  former  are  those  of  which  the  members 
are  spiritual  persons,  and  the  object  of  the  institution  is  also  spiritual. 
With  us  they  are  called  religious  corporations.  This  is  the 
description  given  to  them  in  the  statutes  of  New  York,  Ohio, 
and  other  states,  providing  generally  for  the  incorporation  of 
religious  societies,  in  an  easy  and  jiopular  manner,  and  for  the  pur- 
pose of  managing,  with  more  facility  and  advantage,  the  temporali- 
ties belonging  to  the  church  or  congregation.     Lay  corporations  are 


JURISTIC  PERSONS  451 

again  divided  into  eleemosynary  and  civil.  An  eleemosynary  cor- 
poralion  is  a  private  charity,  constituted  for  the  perpetual  distri- 
bution of  the  alms  and  bounty  of  the  founder.  In  this  class  are 
ranked  hospitals  for  the  relief  of  poor,  sick,  and  impotent  persons, 
and  colleges  and  academies  established  for  the  promotion  of  learn- 
ing and  piety,  and  endowed  with  property,  by  public  and  private 
donations.  Civil  corporations  are  established  for  a  variety  of  pur- 
poses, and  they  are  either  public  or  private.  Public  corporations  are 
such  as  are  created  by  the  government  for  political  purposes,  as 
counties,  cities,  towns,  and  villages;  they  are  invested  with  sub- 
ordinate legislative  powers,  to  be  exercised  for  local  purposes  con- 
nected with  the  public  good;  and  such  powers  are  subject  to  the 
control  of  the  legislature  of  the  state.  They  may  also  be  empowered 
to  take  or  hold  private  property  for  municipal  uses;  and  such  prop- 
erty is  invested  with  the  security  of  other  private  rights.  So  cor- 
porate franchises  attached  to  public  corporations  are  legal  estates 
coupled  with  an  interest,  and  are  protected  as  private  property.  If 
the  foundation  be  private,  the  corporation  is  private,  however  ex- 
tensive the  uses  may  be  to  which  it  is  devoted  by  the  founder,  or  by 
the  nature  of  the  instutution.  A  bank,  created  by  the  government 
for  its  own  uses,  and  where  the  stock  is  exclusively  owned  by  the 
government,  is  a  public  corporation.  So  a  hospital  created  and  en- 
dowed by  the  government,  for  general  purposes,  is  a  public  and  not 
a  private  charity.  But  a  bank  whose  stock  is  owned  by  private 
persons  is  a  private  corporation,  though  its  object  and  operations 
partake  of  a  public  nature,  and  though  the  government  may  have 
become  a  partner  in  the  association  by  sharing  with  the  corporators 
in  the  stock.  The  same  thing  may  be  said  of  insurance,  canal, 
bridge,  turnpike,  and  railroad  companies.  The  uses  may,  in  a  cer- 
tain sense,  be  called  public,  but  the  corporations  are  private,  equally 
as  if  the  franchises  were  vested  in  a  single  person.  A  hospital 
founded  by  a  private  benefactor  is,  in  point  of  law,  a  private  corpo- 
ration, though  dedicated  by  its  charter  to  general  charity.  A 
college,  founded  and  endowed  in  the  same  manner,  is  a  private 
charity,  though  from  its  general  and  beneficent  objects  it  may 
acquire  the  character  of  a  public  institution.  If  the  uses  of  an 
eleemosynary  corporation  be  for  general  charity,  yet  such  purposes 
will  not  of  themselves  constitute  it  a  public  corporation.  Every 
charity  which  is  extensive  in  its  object  may,  in  a  certain  sense,  be 
called  a  public  charity.  Nor  will  a  mere  act  of  incorporation  change 
a  charity  from  a  private  to  be  a  public  one.     The  charter  of  the 


452  PERSONS 

crown,  said  Lord  Hardwicke,  cannot  make  a  charity  more  or  less 
public,  but  only  more  permanent.  It  is  the  extensiveness  of  the 
object  that  constitutes  it  a  public  charity.  A  charity  may  be 
public,  though  administered  by  a  private  corporation.  A  devise  to 
the  poor  of  a  parish  is  a  public  charity.  The  charity  of  almost 
every  hospital  is  public,  while  the  corporations  are  private.  To 
hold  a  corporation  to  be  public,  because  the  charity  was  public, 
would  be  to  confound  the  popular  with  the  strictly  legal  sense  of 
terms,  and  to  jar  with  the  whole  current  of  decisions  since  the  time 
of   Lord   Coke. 

In  England,  corporations  are  created  and  exist  by  prescription, 
by  royal  charter,  and  by  act  of  Parliament.  With  us  they  are  cre- 
ated by  authority  of  the  legislature,  and  not  otherwise.  There  are, 
however,  several  of  the  corporations  now  existing  in  this  country, 
civil,  religious,  and  eleemosynary,  which  owed  their  origin  to  the 
crown  under  the  colony  administration.  Those  charters  granted 
prior  to  the  Revolution  were  upheld,  either  by  express  provision  in 
the  constitutions  of  the  states,  or  by  general  principles  of  public 
and  common  law  of  universal  reception;  and  they  were  preser\"ed 
from  forfeiture  by  reason  of  any  nonuser  or  misuser  of  their  powers, 
during  disorders  which  necessarily  attended  the  Revolution. 


ACTS  453 


CHAPTER  X 
ACTS 

By  "events"  jurists  mean  those  occurrences  which  take  place  independently 
of  human  will.  By  "acts"  they  mean  those  which  are  subject  to  the  control  of 
the  human  will  and  so  flow  therefrom.^  Acts,  then,  are  exertions  of  the  will  mani- 
fested in  the  external  world.  Acts  may  have  legal  consequences  because  they 
interfere  with  interests  (social,  public,  or  private)  recognized  and  protected  by 
law,  and  so  involve  responsibility  for  breach  of  an  absolute  duty  or  liability  for 
breach  of  a  duty  correlative  to  some  right.  In  such  case,  we  must  ask,  has  the 
person  in  question  capacity  for  responsibility  or  for  liability.  In  general,  our 
law  holds  one  to  liability  for  infringement  of  a  private  right  where  it  would  not 
hold  him  to  responsibility  for  breach  of  an  absolute  duty,  as  in  the  case  of  an 
insane  person,  who  may  be  held  for  a  tort  (infringement  of  a  private  right  in  rem) 
but  not  for  a  crime.  Acts  may  also  have  legal  consequences  because  such  was 
the  intention  of  the  person  or  persons  who  performed  them,  and  the  law  recog- 
nizes and  gives  effect  to  that  intention.  Such  acts  are  called  legal  transactions. 
They  are  performed  in  order  to  create  rights,  powers,  or  privileges,  and  when 
done  by  competent  persons  and  in  the  prescribed  manner,  the  law  recognizes 
them  and  carries  out  the  intent.  Examples  are:  conveyances  and  transfers  of 
rights;  contracts;  appointments  of  agents.  In  general,  capacity  for  legal  trans- 
actions is  limited  much  more  than  capacity  for  responsibility.  Thus,  an  infant 
over  seven  years  of  age  may  be  responsible,  and  a  minor  over  fourteen  but  less 
than  twenty-one  years  of  age  will  be  responsible,  if  no  other  defect  exists.  But 
a  minor  has  no  power  of  entering  into  valid  legal  transactions. 

Acts  intended  as  legal  transactions  may  be  valid,  that  is,  they  may  be  such 
that  the  law  gives  them  the  effect  intended,  or  they  may  be  void  or  voidable. 
If  void,  they  have  no  legal  effect  at  all.  If  voidable,  they  have  legal  effect  unless 
and  until  challenged,  but  they  may  be  attacked  for  some  defect,  and,  if  so,  they 
will  fail  to  produce  the  intended  legal  consequences.  Acts  intended  as  legal 
transactions  are  void  where  not  done  in  the  manner  which  the  law  prescribes, 
or  where  they  seek  some  end  which  the  law  refuses  to  recognize  as  legitimate,  or 
where  they  involve  injury  to  some  interest,  social  or  public,  which  the  law  regards 
as  more  important  than  the  general  interest  in  carrying  out  the  intention  of 
those  who  performed  them.  They  are  voidable  chiefly  where  there  is  some  defect 
in  the  capacity  of  the  person  who  acted  or  where  the  intention,  to  which  the  law 
is  asked  to  give  effect,  is  not  formed  freely  or  intelligently, or  under  circumstances 

^Reference  may  be  made  to  Holland,  Jarisprudence,  Chap.  VIII;  Silmond, 
Jurisprudence,  Chaps.  XVII-XIX;  Markby,  Elements  of  Law,  §§203-289; 
Pollock,  First  Book  of  Jurisprudence,  Pt.  I,  Chap.  VI. 


454  ACTS 

which  make  it  fair  lo  hold  the  party  thereto.  If  one  was  forced  or  defrauded  into 
a  transaction,  or  entered  into  it  by  mistake,  there  is  ground  for  attacking  it  as 
being  voidable. 


1.     REPRESENTATION  IN  ACTS 

Holland,  Jurisprudence,   Chap.   8. 

Most,  but  not  all,  juristic  acts  may  in  modern  times  be  performed 
through  a  representative.  A  representative  whose  authority 
extends  only  to  the  communication  of  the  will  of  his  principal  is 
a  mere  messenger,  ''nuntiiis.''  A  representative  whose  instructions 
allow  him  to  exercise  an  act  of  will  on  behalf  of  his  principal,  to  act 
to  some  extent,  as  it  is  said,  "at  his  own  discretion,"  is  an  "Agent." 
His  authority  may  be  express  or  implied,  and  he  ma\-,  in  his  dealings 
with  third  parties,  disclose,  or  he  may  not  disclose,  with  different 
results,  the  fact  that  he  is  acting  on  behalf  of  another.  The  scanty 
and  gradual  admission  of  agency  in  Roman  law  is  a  well-known 
chapter  in  the  history  of  that  system.  The  tendency  of  modern 
times  is  towards  the  fullest  recognition  of  the  principles  proclaimed 
in  the  canon  law:  "potest  quis  per  aliunt  quod  potest  facere 
per  seipsum'';  ''qui  facit  per  alium  est  perinde  ac  si  faciat  pe-r 
seipsum.'' 

Blackstone,   Commentaries,   I,  429-432. 

As  for  those  things  which  a  servant  may  do  on  behalf  of  his  mas- 
ter, they  seem  all  to  proceed  upon  this  principle,  that  the  master  is 
answerable  for  the  act  of  his  servant,  if  done  by  his  command, 
either  expressly  given  or  implied:  nam  qui  Jacit  per  alium,  facit  per 
se.  Therefore,  if  the  servant  commit  a  trespass  by  the  command 
or  encouragement  of  his  master,  the  master  shall  be  guilty  of  it: 
though  the  servant  is  not  thereby  excused,  for  he  is  only  to  obey 
his  master  in  matters  that  are  honest  and  lawful.  If  an  innkeeper's 
servants  rob  his  guests,  the  master  is  boimd  to  restitution:  for  as 
there  is  a  confidence  reposed  in  him,  that  he  will  take  care  to  provide 
honest  servants,  his  negligence  is  a  kind  of  implied  consent  to  the 
robbery;  nam,  qui  non  prohibit,  aim  prohibere  possit,  jubet.  So 
likewise  if  the  drawer  at  a  tavern  sells  a  man  bad  wine,  whereby  his 
health  is  injured,  he  may  bring  an  action  against  the  master:  for 
although  the  master  did  not  expressly  order  the  servant  to  sell  it  to 
that  person  in  particular,  3'et  his  permitting  him  to  draw  and  sell 
it  at  all  is  impliedly  a  general  command. 


REPRESENTATION  IN  ACTS  455 

In  the  same  manner,  whatever  a  servant  is  permitted  to  do  in 
the  usual  course  of  his  business,  is  equivalent  to  a  general  command. 
If  I  pay  money  to  a  banker's  servant,  the  banker  is  answerable  for 
it :    if  I  pay  it  to  a  clergyman's  or  a  physician's  servant,  whose 
usual  business  it  is  not  to  receive  money  for  his  master,  and  he 
embezzles  it,  I  must  pay  it  over  again.     If  a  steward  lets  a  lease  of  a 
farm,  without  the  owner's  knowledge,  the  owner  must  stand  to  the 
bargain;    for  this  is  the  steward's  business.     A  wife,  a  friend,  a 
relation,  that  use  to  transact  business  for  a  man,  are  quoad  hoc  his  ser- 
vants;   and  the  principal  must  answer  for  their  conduct :    for  the 
law  implies,  that  they  act  under  a  general  command ;   and  without 
such  a  doctrine  as  this  no  mutual  intercourse  between  man  and  man 
could  subsist  with  any  tolerable  convenience.     If  I  usually  deal 
with  a  tradesman  by  myself,  or  constantly  pay  him  ready  money, 
I  am  not  answerable  for  what  my  servant  takes  up  upon  trust;  for 
here  is  no  implied  order  to  the  tradesman  to  trust  my  servant ;  but 
if  I  usually  send  him  upon  trust,  or  sometimes  on  trust  and  some- 
times with  ready  money,  I  am  answerable  for  all  he  takes  up,  for 
the  tradesman  cannot  possibly  distinguish  when  he  comes  by  my 
order,  and  when  upon  his  own  authority. 

If  a  servant,  lastly,  by  his  negligence  does  any  damage  to  a 
stranger,  the  master  shall  answer  for  his  neglect:  if  a  smith's  ser- 
vant lames  a  horse  while  he  is  shoeing  him,  an  action  lies  against 
the  master,  and  not  against  the  servant.  But  in  these  cases  the 
damage  must  be  done  while  he  is  actually  employed  in  the  master's 
service ;  otherwise  the  servant  shall  answer  for  his  own  misbehavior. 
.  .  .  A  master  is,  lastly,  chargeable  if  any  of  his  family  layeth 
or  casteth  any  thing  out  of  his  house  into  the  street  or  common 
highway,  to  the  damage  of  any  individual,  or  the  common  nuisance 
of  his  majesty's  liege  people:  for  the  master  hath  the  superintend- 
ence and  charge  of  all  his  household.  And  this  also  agrees  with  the 
civil  law;  which  holds  that  the  pater  familias,  in  this  and  similar 
cases,  "ob  alterius  culpam  tenetur,  sive  servi,  sive  liberi.'' 

We  may  observe,  that  in  all  the  cases  here  put,  the  master  may 
be  frequently  a  loser  by  the  trust  reposed  in  his  servant,  but  never 
can  be  a  gainer;  he  may  frequently  be  answerable  for  his  servant's 
misbehavior,  but  never  can  shelter  himself  from  punishment  by 
laying  the  blame  on  his  agent.  The  reason  of  this  is  still  uniform 
and  the  same;  that  the  wrong  done  by  the  servant  is  looked  upon 
in  law  as  the  wrong  of  the  master  himself;  and  it  is  a  standing 
maxim,  that  no  man  shall  be  allowed  to  make  any  advantage  of  his 
own  wrong. 


456  ACTS 

2.     LEGAL  TRANSACTIONS 

Holland,    Jurisprudence,    Chap.  8. 

Acts  are  divided  by  Jurisprudence  into  those  which  are  "lawful" 
and  those  which  are  "unlawful."  The  juristic  result  of  the  unlawful 
acts  is  never  that  aimed  at  by  the  doer.  In  the  case  of  some  lawful 
acts,  their  operation  is  independent  of  the  intention  of  the  doer; 
in  the  case  of  others,  his  intention  is  directed  to  the  juristic  result. 

In  the  last  mentioned  case,  the  act  is  technically  described  as 
"negotium  civile,''  "ackis  legitimus ,''  ''Acte  juridique,"  "Rechlsge- 
schaeft;"  the  nearest  English  equivalent  for  which  terms  is  probably 
"Juristic  Act."  A  recent  writer  has  used  for  this  purpose  the  phrase 
*'act  in  the  kiw." 

It  has  been  defined,  by  a  high  authority,  as  "an  act  the  intention 
of  which  is  directed  to  the  production  of  a  legal  result."  But  this 
definition,  as  it  stands,  is  wider  than  the  received  use  of  the  term 
would  warrant.  The  judgment  of  a  Court,  or  an  order  of  the  Queen 
in  Council  might  fairly.be  so  described.  A  better  definition  is  "a 
manifestation  of  the  will  of  a  private  individual  directed  to  the 
origin,  termination,  or  alteration  of  rights."  A  "Juristic  Act"  has 
also  been  well  described  as  "the  form  in  which  the  Subjective  Will 
develops  its  activity  in  creating  rights,  within  the  limits  assigned 
to  it  by  the  law."  The  same  writer  continues:  "only  in  so  far  as  it 
keeps  within  these  limits  does  it  really  operate;  beyond  them  its 
act  is  either  barren  of  result,  is  an  empty  nullity,  or  its  operation 
is  turned  negatively  against  the  will,  as  an  obligation  to  undo  what 
has  been  done,  by  suffering  punishment  or  making  reparation," 

Juristic  Acts  (Rechtsgeschaefte)  must,  of  course,  exhibit,  in 
common  with  all  Acts  (Handlungen),  an  exertion  of  will,  accom- 
panied by  consciousness,  and  expressed;  and  any  circumstances 
which  prevent  the  free  and  intelligent  exertion  of  the  will  may 
either  prevent  the  occurrence  of  the  Juristic  Act,  or  may  modify 
the  consequences  which  result  from  it.  What  might  appear  to  be  a 
Juristic  Act,  is  thus  "null,"  or  "void,"  i.e.  has,  as  such,  no  existence, 
if  due  to  such  actual  violence  as  excludes  an  exertion  of  will,  or  if 
accompanied  by  states  of  consciousness,  such  as  lunacy,  drunken- 
ness, and  certain  kinds  of  mistake,  which  are  incompatible  with  an 
intelligent  exertion  of  will.  So  also  a  Juristic  Act,  which  does  come 
into  existence,  is  "voidable,"  i.e.  is  liable  to  be  attacked,  and  pre- 
vented from  producing  its  ordinary  results,  if  attended  at  its  incep- 
tion by  duress  per  minas  (metus),  by  fraud  (dolus),  and,  in  some 
exceptional  cases,  by  mistaken  motives. 


FORM  457 


(a)  Form 


An  Act  for  the  Prevention  of  Frauds  and  Perjuries, 
29Car.  II,c.  3,  (167G.) 
For  prevention  of  many  fraudulent  practices,  which  are  commonly 
endeavored  to  he  upheld  by  perjury  and  subornation  of  perjury; 
be  it  enacted  by  the  King's  most  excellent  Majesty,  by  and  with  the 
ad\ice  and  consent  of  the  lords  spiritual  and  temporal,  and  the 
commons,  in  this  present  parliament  assembled,  and  by  the 
authority  of  the  same,  that  from  and  after  the  four  and  twentieth 
day  of  June,  which  shall  be  in  the  year  of  our  Lord  one  thousand 
six  hundred  seventy  and  seven,  all  leases,  estates,  interests  of  free- 
hold, or  terms  of  years,  or  any  uncertain  interest  of,  in,  to  or  out  of 
any  messuages,  manors,  lands,  tenements  or  hereditaments,  made 
or  created  by  livery  and  seisin  only,  or  by  parol,  and  not  put  in 
writing,  and  signed  by  the  parties  so  making  or  creating  the  same, 
or  their  agents  thereunto  lawfully  authorized  by  writing,  shall  have 
the  force  and  effect  of  leases  or  estates  at  will  only,  and  shall  not 
either  in  law  or  equity  be  deemed  or  taken  to  have  any  other  or 
greater  force  or  effect;  any  consideration  for  making  any  such 
parol  leases  or  estates,  or  any  former  law  or  usage,  to  the  contrary 
notwithstanding. 

II.  Except  nevertheless  all  leases  not  exceeding  the  term  of 
three  years  from  the  making  thereof,  whereupon  the  rent  reserved 
to  the  landlord,  during  such  term,  shall  amount  unto  two  third 
parts  at  the  least  of  the  full  improved  value  of  the  thing  demised. 

III.  And  moreover,  That  no  leases,  estates  or  interests,  either 
of  freehold,  or  terms  of  years,  or  any  uncertain  interest,  not  being 
copyhold  or  customary  interest,  of,  in,  to  or  out  of  any  messuages, 
manors,  lands,  tenements  or  hereditaments,  shall  at  any  time  after 
the  said  four  and  twentieth  day  of  June  be  assigned,  granted  or 
surrendered,  unless  it  be  by  deed  or  note  in  writing,  signed  by  the 
party  so  assigning,  granting  or  surrendering  the  same,  or  their 
agents  thereunto  lawfully  authorized  by  writing,  or  by  act  and  opera- 
tion of  law. 

IV.  And  be  it  further  enacted  by  the  authority  aforesaid,  That 
from  and  after  the  said  four  and  twentieth  day  of  June  no  action 
shall  be  brought  whereby  to  charge  any  executor  or  administrator 
upon  any  special  promise,  to  answer  damages  out  of  his  own  estate; 
(2)  or  whereby  to  charge  the  defendant  upon  any  special  promise 
to  answer  for  the  debt,  default  or  miscarriages  of  another  person; 


458  ACTS 

(3)  or  to  charge  any  person  upon  any  agreement  made  upon  con- 
sideration of  marriage;  (4)  or  upon  any  contract  or  sale  of  lands, 
tenements  or  hereditaments,  or  any  interest  in  or  concerning  them; 
(5)  or  upon  any  agreement  that  is  not  to  be  performed  within  the 
space  of  one  year  from  the  making  thereof;  (G)  unless  the  agree- 
ment upon  wh.ich  such  action  shall  be  brought,  or  some  memorandum 
or  note  thereof,  shall  be  in  writing,  and  signed  by  the  party  to  be 
charged  therewith,  or  some  other  person  thereunto  by  him  lawfully 
authorized. 

V.  And  be  it  further  enacted  by  the  authority  aforesaid,  That 
from  and  after  the  said  four  and  twentieth  day  of  June  all  devises 
and  bequests  of  any  lands  or  tenements,  devisable  either  by  force 
of  the  statute  of  wills,  or  by  this  statute,  or  by  force  of  the  custom 
of  Ke72t,  or  the  custom  of  any  borough,  or  any  other  particular 
custom,  shall  be  in  writing,  and  signed  by  the  party  so  devising  the 
same,  or  by  some  other  person  in  his  presence  and  by  his  express 
directions,  and  shall  be  attested  and  subscribed  in  the  presence  of 
the  said  dc^  isor  by  three  or  four  credible  witnesses,  or  else  they 
shall  be  utterly  void  and  of  none  eflect. 

VI.  And  moreover,  no  devise  in  writing  of  land,  tenements  or 
hereditaments,  nor  any  clause  thereof,  shall  at  any  time  after  the 
said  four  and  twentieth  day  of  June  be  re\ocable;  otherwise  than 
by  some  other  will  or  codicil  in  writing  or  other  writing  declaring 
the  same,  or  by  burning,  cancelling,  tearing  or  obliterating  the 
same  by  the  testator  himself,  or  in  his  presence  and  by  his  directions 
and  consent;  (2)  but  all  devises  and  bequests  of  lands  and  tene- 
ments shall  remain  and  continue  in  force,  until  the  same  be  burnt, 
cancelled,  torn  or  obliterated  by  the  testator,  or  his  directions,  in 
manner  aforesaid,  or  unless  the  same  be  altered  by  some  other  wall 
or  codicil  in  writing,  or  other  writing  of  the  devisor,  signed  in  the 
presence  of  three  or  four  witnesses,  declaring  the  same ;  any  former 
law  or  usage  to  the  contrary  notwithstanding. 

VII.  And  be  it  further  enacted  by  the  authority  aforesaid,  That 
from  and  after  the  said  four  and  twentieth  day  of  June  all  declara- 
tions or  creations  of  trusts  or  confidences  of  any  lands,  tenements 
or  hereditaments,  shall  be  manifested  and  pro\cd  l)y  some  writing 
signed  by  the  party  who  is  by  law  enabled  to  declare  such  trust, 
or  by  his  last  will  in  writing,  or  else  they  shall  be  utterly  \oid  and 
of  none  effect. 

VIII.  Provided  always.  That  where  any  conveyance  shall  be 
made-of  anv  lands  or  tenements  bv  which  a  trust  or  confidence  shall 


FORM  459 

or  may  arise  or  result  by  the  implication  or  construction  of  law, 
or  be  transferred  or  extinguished  by  an  act  or  operation  of  law,  then 
and  in  every  such  case  such  trust  or  confidence  shall  be  of  tlie  like 
force  and  effect  as  the  same  would  have  been  if  this  statute  had  not 
been  made;  anything  herein  before  contained  to  the  contrary 
notwithstanding. 

IX.  And  be  it  further  enacted.  That  all  grants  and  assignments 
of  any  trust  or  confidence  shall  likewise  be  in  writing,  signed  by  the 
party  granting  or  assigning  the  same,  or  by  such  last  will  or  devise, 
or  else  shall  likewise  be  wholly  void  and  of  none  effect. 

Ames,  Law  and  Morals,  22  Harvard  Law  Rev.  97,  100. 

We  have  seen  how  in  the  law  of  crimes  and  torts  the  ethical  quality 
of  the  defendant's  act  has  become  the  measure  of  his  liability  instead 
of  the  mere  physical  act  regardless  of  the  motive  or  fault  of  the 
actor.  The  history  of  the  law  of  contracts  exhibits  a  similar  trans- 
formation in  the  legal  significance  of  the  written  or  spoken  word. 
By  the  early  law,  in  the  absence  of  the  formal  word,  there  was  no 
liability,  however  repugnant  to  justice  the  result  might  be.  On 
the  other  hand,  if  the  formal  word  was  given,  then  the  giver  was 
bound,  however  unrighteous,  by  reason  of  the  circumstances  under 
which  he  gave  it,  it  might  be  to  hold  him  to  his  promise.  The  per- 
sistence of  this  unmoral  doctrine  in  the  English  law  is  most  surpris- 
ing. As  late  as  1606  the  plaintiff  brought  an  action  alleging  that 
the  defendant,  a  goldsmith,  sold  him  a  stone,  affirming  it  to  be  a 
bezoar  stone,  whereas  it  was  not  such  a  stone.  The  court  gave 
judgment  against  the  plaintiff  on  the  ground  "that  the  bare  affir- 
mation that  it  was  a  bezoar  stone,  without  warranting  it  to  be  so, 
is  no  cause  of  action."  The  buyer  reasonably  supposed  that  he 
was  getting  a  valuable  jewel  for  his  hundred  pounds,  but  he  must 
pocket  his  loss,  since  the  goldsmith  did  not  use  the  magic  words 
"I  warrant"  or  "I  undertake."  Today,  of  course,  the  sale  of  a 
chattel  as  being  of  a  particular  description  implies  a  warranty  or 
undertaking  to  that  effect.  But  the  notion  of  implying  a  promise 
from  the  conduct  of  the  party  was  altogether  foreign  to  the  mental 
operations  of  the  medieval  lawyer.  For  this  reason,  the  buyer 
took  the  risk  of  the  seller's  not  being  the  owner  of  the  property  sold 
unless  the  seller  expressly  warranted  the  title.  In  the  case  of  goods 
the  mere  selling  as  owner  is  today  a  warranty  of  title,  but  the  rules 
of  real  property  not  being  readily  changed,  the  archaic  law  still 
survives  in  the  case  of  conveyances  of  land,  the  grantee  being  without 


460  ACTS 

remedy  if  there  is  no  covenant  of  title  in  the  deed.  The  inability 
to  imply  a  promise  from  the  conduct  of  the  parties  explains  this 
remark  of  Chief  Justice  Brian:  "If  I  bring  cloth  to  a  tailor  to  have 
a  cloak  made,  if  the  price  is  not  ascertained  beforehand  that  I 
shall  pay  for  the  work,  he  shall  not  have  an  action  against  me." 
Similarly,  in  the  reign  of  Elizabeth  a  gentleman  of  quality  put  up 
at  an  inn  with  his  servants  and  horses.  But  no  price  was  agreed 
upon  for  his  accommodations.  The  gentleman  declining  to  pay, 
the  inn-keeper  could  obtain  no  relief  at  law.  Neither  the  cus- 
tomer nor  the  guest  had  made  an  express  promise  to  pay.  The 
law  could  not  continue  in  this  state.  It  was  shocking  to  the  moral 
sense  of  the  community  that  a  man  should  not  pay  for  what  was 
given  him  upon  the  mutual  understanding  that  it  should  be  paid 
for.  Accordingly  the  judges  at  length  realized  and  declared  that 
the  act  of  employing  a  workman,  ordering  goods,  or  putting  up 
at  an  inn  meant,  without  more,  an  undertaking  to  make  reasonable 
compensation. 

There  is  a  certain  analogy  between  the  ethical  development  of 
the  law  and  that  of  the  individual.  As  early  law  is  formal  and 
unmoral,  so  the  child  or  youth  is  wont  to  be  technical  at  the  expense 
of  fairness. 

Wheeler  v.  Klaholt,  Supreme  Judicial  Court  of  Massa- 
chusetts, 1901  (178  Mass.  141). 

Holmes,  C.  J.:  This  is  an  action  for  the  price  of  one  hundred 
and  seventy-four  pairs  of  shoes,  and  the  question  raised  by  the 
defendants'  exceptions  is  whether  there  was  any  evidence,  at  the 
trial,  of  a  purchase  by  the  defendants.  .  .  . 

The  evidence  of  the  sale  was  this.  The  shoes  had  been  sent  to 
the  defendants  on  the  understanding  that  a  bargain  had  been 
made.  It  turned  out  that  the  parties  disagreed,  and  if  any  con- 
tract had  been  made  it  was  repudiated  by  them  both.  Then,  on 
September  11,  1899,  the  plaintiffs  wrote  to  the  defendants  that  they 
had  written  to  their  agent,  Young,  to  inform  the  defendants  that 
the  latter  might  keep  the  goods  "at  the  price  you  offer  if  you  send 
us  net  spot  cash  at  once.  If  you  cannot  send  us  cash  draft  by  return 
mail,  please  return  the  goods  to  us  immediately  via  Wabash  & 
Fitchburg  Railroad,  otherwise  they  will  go  through  New  York 
City  and  it  would  take  three  or  four  weeks  to  get  them."  On 
September  15,  the  defendants  enclosed  a  draft  for  the  price  less 
four  per  cent,  which  they  said  was  the  proposition  made  by  Young. 


FORM  461 

On  September  18  the  plaintiffs  replied,  returning  the  draft,  saying 
that  there  was  no  deduction  of  four  per  cent,  and  adding,  "if  not 
satisfactory  please  return  the  goods  at  once  by  freight  via  Wabash 
&  Fitchburg  Railroad."  This  letter  was  received  by  the  defendants 
on  or  before  September  20,  but  the  plaintiffs  heard  nothing  more 
until  October  25,  when  they  were  notified  by  the  railroad  company 
that  the  goods  were  in  Boston. 

It  should  be  added  that  when  the  goods  were  sent  to  the  defend- 
ants they  were  in  good  condition,  new,  fresh  and  well  packed,  and 
that  when  the  plaintiffs  opened  the  returned  cases  their  contents 
were  more  or  less  defaced  and  some  pairs  of  shoes  were  gone.  It 
fairly  might  be  inferred  that  the  cases  had  been  opened  and  the  con- 
tents tumbled  about  by  the  defendants,  although  whether  before 
or  after  the  plaintiffs'  final  offer  perhaps  would  be  little  more  than 
a  guess. 

Both  parties  invoke  Hobbs  v.  Massasoit  Whip  Co.,  158  Mass.  194, 
the  defendants  for  the  suggestion  on  p.  197  that  a  stranger  by 
sending  goods  to  another  cannot  impose  a  duty  of  notification  upon 
him  at  the  risk  of  finding  himself  a  purchaser  against  his  own  will. 
We  are  of  the  opinion  that  this  proposition  gives  the  defendants  no 
help.  The  parties  were  not  strangers  to  each  other.  The  goods 
had  not  been  foisted  upon  the  defendants,  but  were  in  their  cus- 
tody presumably  by  their  previous  assent,  at  all  events  by  their 
assent  implied  by  their  later  conduct.  The  relations  between  the 
parties  were  so  far  similar  to  those  in  the  case  cited,  that  if  the 
plaintiffs'  offer  had  been  simply  to  let  the  defendants  have  the 
shoes  at  the  price  named,  with  an  alternative  request  to  send  them 
back  at  once,  as  in  their  letters,  the  decision  would  have  applied, 
and  a  silent  retention  of  the  shoes  for  an  unreasonable  time  W'ould 
ha\e  been  an  acceptance  of  the  plaintiffs'  terms,  or,  at  least  would 
ha\e  warranted  a  finding  that  it  w'as.  .  .  , 

The  defendants  seek  to  escape  the  effect  of  the  foregoing  prin- 
ciple, if  held  applicable,  on  the  ground  of  the  terms  offered  by  the 
plaintiff's.  They  say  that  those  terms  made  it  impossible  to  accept 
the  plaintiffs'  offer,  or  to  give  the  plaintiff's  any  reasonable  ground 
for  understanding  that  their  off'cr  was  accepted,  otherwise  than  by 
promptly  forwarding  the  cash.  They  say  that  w'hatever  other 
liabilities  they  may  ha\e  incurred  they  could  not  have  purported 
to  accept  an  offer  to  sell  for  cash  on  the  spot  by  simply  keeping  the 
goods.  But  this  argument  appears  to  us  to  take  one  half  of  the  plain- 
tiffs' proposition  with  excessive  nicety,  and  to  ignore  the  alternative. 


462  ACTS 

Probably  the  offer  could  have  been  accepted  and  the  bargain  have 
been  made  complete  before  sending  on  the  cash.  At  all  events,  we 
must  not  forget  the  alternative,  which  was  the  immediate  return 
of  the  goods. 

The  evidence  warranted  a  finding  that  the  defendants  did  not 
return  the  goods  immediately  or  within  a  reasonable  time,  although 
subject  to  a  duty  in  regard  to  them.  The  case  does  not  stand  as  a 
simple  offer  to  sell  for  cash  received  in  silence,  but  as  an  alterna- 
tive offer  and  demand  to  and  upon  one  who  was  subject  to  a  duty 
to  return  the  goods,  allowing  him  either  to  buy  for  cash  or  to  return 
the  shoes  at  once,  followed  by  a  failure  on  his  part  to  do  anything. 
Under  such  circumstances,  a  jury  would  be  warranted  in  finding 
that  a  neglect  of  the  duty  to  return  imported  an  acceptance  of  the 
alternative  offer  to  sell,  although  coupled  with  a  failure  to  show  that 
promptness  on  which  the  plaintiffs  had  a  right  to  insist  if  they  saw 
fit,  but  which  they  also  were  at  liberty  to  waive. 

(b)  Grounds  of  Avoidance 

(i)  Duress  and   Undue  Influence. 

Britton,  Chap.  XII,  §  8  (Nichols'  translation). 

And  we  will,  that  whatever  contracts  shall  be  made  in  prison 
by  prisoners  not  taken  or  detained  for  felony  shall  be  held  valid, 
unless  made  under  such  distress  as  includes  fear  of  death  or  tor- 
ture of  body;  and  in  such  case  they  shall  reclaim  their  deed,  as 
soon  as  they  are  at  liberty,  and  signify  the  fear  they  were  under  to 
the  nearest  neighbours  and  to  the  coroner ;  and  if  they  do  not  reclaim 
such  deeds  by  plaint  within  the  year  and  dtiy,  the  deeds  shall  be 
valid. 

Swinburne,  A  Brief  Treatise  of  Testaments  and  Last 
WiLLES,  10  (1590). 
Where  it  is  said  in  the  definition  of  our  will,  the  interpreters  doe 
gather  by  this  woorde  our,  that  the  testator  ought  to  enjoy  all 
liberty,  and  freedome  in  the  making  of  his  will ;  that  is  to  say  full 
power  and  habilitie,  to  withstande  all  contradiction  and  counter- 
maund.  And  therefore  if  the  testator  be  compelled  by  violence,  or 
urged  by  threatnings,  to  make  his  testament:  the  testament  being 
made  by  iust  feare,  is  uneffectuall.  Likewise  if  hce  bee  circum- 
uented  by  fraud,  the  testament  loscth  his  force:  for  albeit  honest 
and  modest  intercession,  or  request,  is  not  prohibited;    yet  these 


GROUNDS  OF  AVOIDANCE  463 

fraudulent  and  malicious  meanes,  whereby  many  are  secretly 
induced  to  make  their  testamentes,  are  no  lesse  detestable  then  open 
force. 

Blackstone,  Commentaries,   I,   130-131. 

For  whatever  is  done  by  a  man  to  save  either  life  or  member,  is 
looked  upon  as  done  upon  the  highest  necessity  and  compulsion. 
Therefore,  if  a  man  through  fear  of  death  or  mayhem  is  prevailed 
upon  to  execute  a  deed,  or  do  any  other  legal  act;  these,  though 
accompanied  with  all  other  the  requisite  solemnities,  may  be  after- 
wards avoided,  if  forced  upon  him  by  a  well-grounded  apprehension 
of  losing  his  life,  or  even  his  limbs,  in  case  of  his  non-compliance. 
And  the  same  is  also  a  sufficient  excuse  for  the  commission  of  many 
misdemeanors,  as  will  appear  in  the  fourth  book.  The  constraint 
a  man  is  under  in  these  circumstances  is  called  in  law  duress,  from 
the  Latin  durities,  of  which  there  are  two  sorts:  duress  of  imprison- 
ment, where  a  man  actually  loses  his  liberty,  of  which  we  shall 
presently  speak;  and  duress  per  viinas,  where  the  hardship  is  only 
threatened  and  impending,  w'hich  is  that  we  are  now  discoursing  of. 
Duress  per  minas  is  either  for  fear  of  loss  of  life,  or  else  for  fear  of 
mayhem,  or  loss  of  limb.  And  this  fear  must  be  upon  sufficient 
reason;  "^zow,"  as  Bracton  expresses  it,  ''suspicio  cujuslihet  vani 
et  metictdosi  hominis,  sed  talis  qui  possit  cadere  in  viriim  constantem ; 
talis  enim  debet  esse  metus,  qui  in  se  contineat  vitae  pericidum,  aut 
corporis  cruciatum.''  A  fear  of  battery  or  being  beaten,  though 
never  so  well  grounded,  is  no  duress;  neither  is  the  fear  of  having 
one's  house  burned,  or  one's  goods  taken  away  and  destroyed, 
because  in  these  cases,  should  the  threat  be  performed,  a  man  may 
have  satisfaction  by  recovering  equivalent  damages:  but  no 
suitable  atonement  can  be  made  for  the  loss  of  life  or  limb.  And 
the  indulgence  shown  to  a  man  under  this,  the  principal  sort  of 
duress,  the  fear  of  losing  his  life  or  limbs,  agrees  also  with  that 
maxim  of  the  civil  law;  ignoscitur  ei  qui  sanguinem  suuni  qualiter 
redemptum  voluit. 

Ames,    Specialty     Contracts    and     Equitable    Defenses. 

9  Harvard  Law  Rev.  49,  57. 

The  general  rule,  that  the  misconduct  of  the  obligee  in  procuring 

or  enforcing  a  specialty  obligation  was  no  bar  at  common  law  to  an 

action  upon  the  instrument,  was  subject  to  one  exception.     As  far 


464  ACTS 

back  as  Bracton's  time,  at  least,  one  who  had  duly  signed  and 
sealed  an  obligation,  and  who  could  not  therefore  plead  lion  est 
factum,  might  still  defeat  an  action  by  pleading  affirmatively  that 
he  was  induced  to  execute  the  specialty  by  duress  practised  upon 
him  by  the  plaintiff.  The  Roman  law  was  more  consistent  than 
the  English  law  in  this  respect.  For,  by  the  jus  civile,  duress,  like 
fraud,  was  no  answer  to  a  claim  upon  a  formal  contract.  All 
defenses  based  upon  the  conduct  of  the  obligee  were  later  innova- 
tions of  the  praetor,  and  were  known  as  exceptiones  praetoriae,  or 
as  we  should  say,  equitable  defenses. 

It  is  quite  possible  that  the  anomalous  allowance  of  the  defense 
of  du'"ess  at  common  law  may  be  due  to  some  forgotten  statute. 
But  whatever  its  origin,  the  defense  of  duress  does  not  differ  in  its 
nature  from  the  defense  of  fraud.  As  Mr.  Justice  Holmes  well 
says:  "The  ground  upon  which  a  contract  is  voidable  for  duress  is 
the  same  as  in  the  case  for  fraud;  and  is  that,  whether  it  springs 
from  a  fear  or  from  a  belief,  the  party  has  been  subjected  to  an  im- 
proper motive  for  action."  Duress  was,  therefore,  never  regarded 
as  negativing  the  legal  execution  of  the  obligation.  "The  deed 
took  effect,  and  the  duty  accrued  to  the  party,  although  it  were  by 
duress  and  afterwards  voidable  by  plea."  The  defense  is  strictly 
personal,  and  not  real;  that  is,  it  is  effective,  like  all  equitable 
defenses,  only  against  the  wrong-doer,  or  one  in  privity  with  him. 
Duress  by  a  stranger  cannot,  therefore,  be  successfully  pleaded  in 
bar  of  an  action  by  an  innocent  obligee;  and  duress  by  the  payee 
upon  the  maker  of  a  negotiable  note  will  not  affect  the  rights  of  a 
subsequent  bona  fide  holder  for  value. 

Story,  Equity  Jurisprudence,  I,   §§238,239. 

238.  The  doctrine  therefore  may  be  laid  down  as  generally  true, 
that  the  acts  and  contracts  of  persons  who  are  of  weak  under- 
standings, and  who  are  thereby  liable  to  imposition,  will  be  held  void 
in  Courts  of  Equity  if  the  nature  of  the  act  or  contract  justify  the 
conclusion  that  the  party  has  not  exercised  a  deliberate  judgment, 
but  that  he  has  been  imposed  upon,  circumvented,  or  overcome  by 
cunning,  or  artifice,  or  undue  influence.  The  rule  of  the  common 
law  seems  to  have  gone  further  in  cases  of  wills  (for  it  is  said  that 
perhaps  it  can  hardly  be  extended  to  deeds  without  circumstances 
of  fraud  or  imposition),  since  the  common  law  requires  thrit  a 
person,  to  dispose  of  his  property  by  will,  should  be  of  sound  and 
disposing  memory,  which  imports  that  the  testator  should  have 


GROUNDS  OF  AVOIDANCE  465 

understanding  to  dispose  of  his  estate  with  judgment  and  discretion ; 
and  this  is  to  be  collected  from  his  words,  actions,  and  behavior  at 
the  time,  and  not  merely  from  his  being  able  to  gave  a  plain  answer 
to  a  common  question.   .  .  . 

239.  Cases  of  an  analogous  nature  may  easily  be  put  where  the 
party  is  subjected  to  undue  influence,  although  in  other  respects  of 
competent  understanding.  As  where  he  does  an  act  or  makes  a 
contract  when  he  is  under  duress  or  the  influence  of  extreme  terror 
or  of  threats,  or  of  apprehensions  short  of  duress.  For  in  cases  of 
this  sort  he  has  no  free  will,  but  stands  in  vinculis.  And  the  con- 
stant rule  in  equity  is,  that  where  a  party  is  not  a  free  agent  and 
is  not  equal  to  protecting  himself,  the  court  will  protect  him.  The 
maxim  of  the  common  law  is  ^'Qiiod  alias  bonum  et  justum  est,  si 
per  vim  vel  fraudem  petatiir,  malum  et  injustiim  efficitiiry  On  this 
account  Courts  of  Equity  watch  with  extreme  jealousy  all  contracts 
made  by  a  party  while  under  imprisonment,  and  if  there  is  the  slight- 
est ground  to  suspect  oppression  or  imposition,  in  such  cases  they 
will  set  the  contracts  aside.  Circumstances  also  of  extreme  necessity 
and  distress  of  the  party,  although  not  accompanied  by  any  direct 
restraint  or  duress,  may  in  like  manner  so  entirely  overcome  his 
free  agency  as  to  justify  the  court  in  setting  aside  a  contract  made 
by  him  on  account  of  some  oppression  or  fraudulent  advantage  or 
imposition  attendant  upon  it. 

People  v.  Speir,  Court  of  Appeals  of  New  York,  1879 
(77N.Y.  144, 150). 
Danforth,  J.:  There  is  a  class  of  cases  where  the  law  prescribes 
the  rights  and  liabilities  of  persons  who  have  not  in  reality  entered 
into  any  contract  at  all  with  one  another,  but  between  whom  cir- 
cumstances have  arisen  which  make  it  just  that  one  should  have  a 
right,  and  the  other  should  be  subject  to  a  liability  similar  to  the 
rights  and  liabilities  in  certain  cases  of  express  contract.  Thus,  if 
one  man  has  obtained  money  from  another,  through  the  medium 
of  oppression,  imposition,  extortion,  or  deceit,  or  by  the  commission 
of  a  trespass,  such  money  may  be  recovered  back,  for  the  law 
implies  a  promise  from  the  wrong-doer  to  restore  it  to  the  rightful 
owner,  although  it  is  obvious  that  this  is  the  very  opposite  of  his 
intention.  Implied  or  constructive  contracts  of  this  nature  are  simi- 
lar to  the  constructive  trusts  of  courts  of  equity,  and  in  fact  are 
not  contracts  at  all. 


466  ACTS 

(ii)  Fraud. 

Ames,  Specialty  Contracts  AND  Equitable  Defenses,  9  Har- 
vard Law  Rev.  49,  51. 
Startling  as  the  proposition  may  appear,  it  is  nevertheless   true 
that  fraud  was  no  defense  to  an  action  at  law  upon  a  sealed  con- 
tract.    In  1835,  in  Mason  v.   Ditchbourne,  the  defendant  urged  as 
a  defense  to  an  action  upon  a  bond,  that  it  had  been  obtained  from 
him  by  fraudulent  representations  as  to  the  nature  of  certain  prop- 
erty; but  the  defense  was  not  allowed.     Lord  Abinger  said:  "The 
old  books  tell  us  that  the  plea  of  fraud  and  covin  is  a  kind  of  special 
non  est  factum,  and  it  ends  'and  so  the  defendant  says  it  is  not  his 
deed.'    Such  a  plea  would,  I  admit,  let  in  evidence  of  any  fraud  in 
the  execution  of  the  instrument  declared  upon:  as  if  its  contents 
were  misread,  or  a  different  deed  were  substituted  for  that  which 
the  party  intended  to  execute.     You  may  perhaps  be  relieved  in 
equity,  but  in  a  court  of  law  it  has  always  been  my  opinion  that 
such  a  defense  is  unavailing,  when  once  it  is  shown  that  the  party 
knew  perfectly  well  the  nature  of  the  deed  which  he  was  executing." 
This  case  was  followed  in    1861  in  Wright  v.   CamphJl,  Byles,  J., 
remarking:   "Surely,   though   you  shewed   the  transaction  out  of 
which  it  arose  to  have  been  fraudulent,  yet  in  an  action  at  law, 
on  the  deed,  that  would  not  be  available  as  a  legal  defense." 

Haynes,  Outlines  of  Equity,  Lect.  5. 

Now,  going  back  to  the  earliest  discussions  respecting  the  inter- 
position of  equity,  we  find  it  repeatedly  stated,  that  "covin,  acci- 
dent, and  breach  of  confidence"  are  the  proper  subjects  of  equity 
jurisdiction.  There  was  a  doggerel  rhyme  in  vogue  expressing  the 
legal  views  on  the  subject: — 

"Three  things  are  judged  in  court  of  conscience: 
Covin,  accident,  and  breach  of  confidence." 

The  last  of  these  three,  breach  of  confidence,  we  have  already,  as 
you  know,  considered  under  the  head  of  "trusts."  The  modern 
equivalent  for  the  word  ''covin'  is  ''fraud.''  And  fraud  we  now 
proceed  to  consider,  together  with  accident  (also  referred  to  by 
Lord  Coke)  and  mistake,  which,  to  the  best  of  my  belief,  is  not 
mentioned  as  a  head  of  equity,  either  by  him  or  by  any  other  text- 
writer  of  ancient  date. 

Taking,  t\\Qn,  fraud,  accident,  and  mistake  in  the  order  mentioned, 
it  is  first  to  be  observed  that,  when  discussing  ''fraud'"  under  the 


GROUNDS  OP^  AVOIDANCE  467 

head  of  concurrent  equity  jurisdiction,  we  have,  in  strictness,  no 
concern  with  those  cases  of  constructive  fraud,  which  rest  upon 
doctrines  forming  part  of  ahnost  every  system  of  civiUzed  juris- 
prudence, but  >'et  ignored  l)y  the  common  hiw  of  England :  I  mean 
the  doctrines,  according  to  which  a  special  disability  is  imposed, 
in  reference  to  the  dealings,  whether  in  the  nature  of  contract  or 
of  gift,  of  persons  standing  towards  one  another  in  certain  con- 
fidential relations;  such  as  solicitor  and  client,  guardian  and  ward, 
trustee  and  cestui  que  trust. 

Thus,  by  the  Roman  law,  the  tutor  (or  guardian)  was  prohibited 
from  purchasing  the  property  of  his  pupil  (or  ward),  and  a  similar 
rule  was  applied  to  those  standing  in  a  similar  fiduciary  position. 

So  by  the  Code  Napoleon  the  tutor  (or  guardian)  is  prohibited 
from  either  buying  or  taking  a  lease  of  his  ward's  property,  without 
special  authorization  given  by  what  is  called  the  "conseil  de  famille," 
the  family  council,  composed  of  the  near  relatives  of  the  ward. 

Our  own  equitable  rule  on  the  subject,  in  reference  to  gifts,  was, 
in  a  case  frequently  quoted,  thus  referred  to  by  Lord  Eldon:  "This 
case  proves  the  wisdom  of  the  court,  in  saying  that  it  is  almost 
impossible,  in  the  course  of  the  connection  of  guardian  and  ward, 
attorney  and  client,  trustee  and  cestui  que  trust,  that  a  trans- 
action shall  stand,  purporting  to  be  bounty  for  the  execution  of 
an  antecedent  duty." 

Laying  out  of  account,  then,  these  cases  of  "constructive  fraud," 
or  "fraud  in  equity,"  we  proceed  to  consider  the  equity  jurisdiction 
in  cases  of  fraud,  in  its  popular  or  ordinary  sense  of  imposition  or 
circumvention;  cases,  in  fact,  falling  within  the  old  legal  term 
"covin,"  and  which,  in  the  modern  text-books,  such  as  Story's 
Equity  Jurisprudence,  you  will  find  ranged  under  the  head  of 
"actual  fraud.'' 

Now,  in  these  cases  of  actual  fraud,  the  jurisdiction  of  equity 
was,  in  the  main,  strictly  concurrent.  The  court  of  law  took  cogni- 
zance of  the  fraud,  both  as  ground  for  a  right  of  action  and  as  a 
ground  of  defense.  Thus,  where  money  had  been  obtained  through 
fraud,  an  action  on  the  case  lay  for  its  recovery  back;  and  to  any 
action  brought  upon  an  instrument  obtained  by  fraud,  a  plea  of 
fraud  in  obtaining  it  was  a  good  defense. 

The  equity  jurisdiction,  however,  possessed  many  advantages  over 
the  legal.  Thus,  in  most  instances  of  actual  fraud,  equity  pos- 
sessed the  means  of  compelling  the  defendant  to  answer,  upon  oath, 
detailed  interrogatories  respecting  all  the  alleged  facts  and  circum- 


468  ACTS 

stances  of  the  fraud,  many  of  whjch  facts  and  circumstances  might 
be  known  only  to  the  plaintifif  and  defendant;  and  this  advantage 
alone  would  almost  seem  sufficient  to  have  attracted  into  equity 
almost  the  entire  jurisdiction  in  reference  to  fraud,  when  it  is  con- 
sidered that,  until  within  the  last  few  years,  neither  could  the 
plaintiff  be 'heard  as  a  witness  to  prove  his  own  case,  nor  could 
he  compel  the  defendant  to  attend  and  give  evidence. 

Again,  where  the  fraud  had  resulted  in  a  deed  actually  executed, 
conferring  some  estate  or  right  which  might  be  asserted  in  fntitro, 
what  was  really  wanted  was  a  judgment,  directing  the  deed  to  be 
given  up  to  the  person  defrauded,  or  ordering  it  to  be  cancelled; 
and  this  was  a  species  of  remedy  which  the  law  courts  never  took 
upon  themselves  to  administer.  You  ma}-  recollect,  perhaps,  my 
pointing  out  in  my  first  lecture,  that  the  maxim  that  equity  acts 
"in  personam''  forms  one  of  the  distinguishing  features  of  the 
equitable  jurisdiction.  As  an  ofT-shoot  of  this  maxim,  we  find  the 
equity  courts,  in  the  early  times  of  Henry  YI.  and  Edward  lY. 
compelling  the  actor  in  the  fraud  to  restore  the  fruits  of  his  fraud- 
ulent conduct. 

If  anything  further  were  needed  to  establish  the  superior  appro- 
priateness of  the  equitable  jurisdiction  over  the  legal,  it  would  be 
found  in  the  circumstance,  that  the  Equity  Court  is  able,  in  con- 
formity with  its  habitual  mode  of  action,  while  setting  aside  and 
undoing  the  fraudulent  transaction,  to  qualify  the  annulling 
operation  of  its  own  decree  in  such  a  manner  as  may  seem  just. 
Thus,  in  the  case  of  a  bill  to  set  aside  a  conveyance  of  real  estate, 
as  having  been  obtained  by  fraudulent  representations  at  a  grossly 
inadequate  value  —  if  the  court  set  aside  the  deed,  it  will  do  so 
only  on  the  terms  of  repayment  of  the  purchase  money  and  interest. 

When  we  consider  then  the  advantages  of  the  Equity  Court, 
in  respect  —  first,  of  compelling  discovery;  secondly,  of  interfering 
actively  to  annul  instruments  fraudulently  obtained;  and  thirdly, 
of  properly  modifying  its  decrees  and  adjusting  them  to  the  rights 
of  all  parties;  it  can  hardly  be  wondered  at  that  its  jurisdiction, 
though  technically  concurrent,  should  have  become  almost  exclu- 
sive in  practice. 

(iii)  Mistake. 

Haynes,  Outlines  of  Equity,  Lect.  5. 

Mistake  may  be  said  to  exist  in  the  legal  sense,  where  a  person 
acting  upon  some  erroneous  conviction,  either  of  law  or  of  fact, 


GROUNDS  OF  AVOIDANCE  469 

executes  some  instrument  or  does  some  act  which,  but  for  that 
erroneous  conviction,  he  would  not  have  executed  or  done. 

Now,  in  reference  to  ''mistake,''  there  is  one  point  upon  which 
the  doctrines  of  the  common  law  and  of  equity  will  be  found  agree- 
ing in  the  main  both  with  each  other  and  with  the  Roman  law.  It 
is  this— -that  while  mistake  as  to  law  affords  no  ground  for  relief, 
mistake  as  to  fact  does.  Thus  in  the  Digest,  under  the  title  ''De 
juris  et  facti  ignorantia,'"  we  find  the  law  thus  laid  down:  "Regula 
est,  juris  quidem  ignorantiam  cnique  nocere,  facti  vera  ignorantiam 
von  nocere.''  And  the  first  illustration,  given  at  the  commence- 
ment of  the  title,  of  the  distinction  between  ignorance  of  law  and 
ignorance  of  fact  may  be  freely  rendered  thus:  —  "If  a  man  be 
ignorant  of  the  death  of  a  kinsman  whose  property  is  about  to  be 
dealt  with,  time  shall  not  run  against  him:  otherwise,  if  he  be 
aware  of  the  death  and  of  his  own  relationship,  but  ignorant  of  his 
consequent  rights." 

Of  the  existence  of  the  rule,  as  part  of  our  common  law  juris- 
prudence, the  case  of  Bilhie  v.  Lumley  afi^ords  an  apt  instance. 
There,  an  underwriter,  with  knowledge  of  a  fact  which  would 
have  entitled  him  to  dispute  his  liability  under  a  policy  of  marine 
insurance  which  he  had  underwritten,  but  in  ignorance  of  the 
legal  rights  resulting  from  that  fact,  paid  the  amount  which  he  had 
assured ;  and  subsequently  brought  an  action  to  recover  the  money 
back.  The  Court  of  King's  Bench  held  the  action  would  not  lie. 
Lord  Ellenborough  asked  plaintiff's  counsel  whether  he  could 
state  any  case  where,  if  a  party  paid  money  to  another  voluntarily, 
and  with  full  knowledge  of  all  t\\e.  facts  of  the  case,  he  could  recover 
it  back  again  on  account  of  his  ignorance  of  the  law.  No  answer 
was  given;  and  his  lordship  subsequently  said,  "Every  man  must 
be  taken  to  be  cognizant  of  the  law;  otherwise,  there  is  no  saying  to 
what  extent  the  ignorance  might  not  be  carried.  It  would  be  urged 
in  almost  every  case." 

This  short  observation  contains,  I  conceive,  the  true  ground  for 
the  distinction  between  mistake  of  law  and  mistake  of  fact.  Prob- 
ably, in  a  very  large  number  of  transactions  there  is  at  best  but  an 
imperfect  knowledge  of  the  real  state  of  the  law;  and  even  where 
the  knowledge  really  exists,  few  things  could  be  easier  to  allege  or 
harder  to  disprove  than  legal  ignorance.  Indeed,  if  mistake  or 
misapprehension  as  to  matter  of  law  were  admitted  as  a  ground 
for  reopening  engagements  solemnly  entered  into,  it  is  difficult  to 
see  how  any  engagement  could  be  relied  on. 


470  ACTS 

It  must,  however,  be  confessed  that  when  we  proceed  to  the  con- 
sideration of  the  cases  in  equity  respecting  ''mistake,''  we  find  occa- 
sionally the  line  of  demarcation  between  mistake  of  law  and  mis- 
take of  fact  less  distinctly  drawn  in  equity  than  either  by  the 
Roman  or  by  the  common  law.     This  has  occurred  more  particu- 
larly in  those  cases  where,  under  special  circumstances,  combined 
with  legal  ignorance  of  a  very  glaring  kind,  the  court  has  been 
induced  to  grant  relief,  and  has  apparently  rested  its  judgment 
more  or  less  on  the  mistake  or  ignorance  of  law.     The  oft-men- 
tioned case  of  Lansdowne  v.  Lansdowne  is,  perhaps,  the  fittest  rep- 
resentative of  this  class  of  cases.     There,  the  plaintiff,  who  was  son 
of  the  eldest  brother  of  a  deceased  intestate,  had  a  dispute  with 
his  uncle,  a  younger  brother,  respecting  the  right  to  inherit  the  real 
estate  of  the  deceased.     It  was  agreed  to  consult  a  schoolmaster, 
named  Hughes,  who,  in  his  turn,  resorted  for  counsel  to  a  book 
called  the  "Clerk's  Remembrancer,"  and  finding  the  law  as  laid 
down  in  the  book  to  be,  "that  land  could  not  ascend,  but  always 
descended,"  he  put  the  best  exposition  he  could  on  these  somewhat 
ambiguous  words,  and  decided  that  the  younger  brother  was  entitled. 
Therefore,  it  was  agreed  that  the  son  of  the  elder  brother  and  the 
younger  brother,  his  uncle,  should  share  the  lands,  and  a  bond  and 
conveyances  were  executed  for  the  purpose  of  carrying  out  the 
agreement.     The  nephew  subsequently  filed  his  bill  to  be  relieved; 
and   Lord   King,  Chancellor,  decreed  that  the  bond  and  convey- 
ances had  been  obtained  by  mistake  and  misrepresentation  of  the 
law,  and  ordered  them  to  be  given  up  to  be  cancelled.     Lord  King 
is  reported  to  have  said,  in  delivering  judgment,  that  "That  maxim 
of  law,  Ignorantia  juris  non    excusat,  was  in  regard  to  the   Pub- 
lic, that  Ignorance  cannot  be  pleaded  in  Excuse  of  Crimes,  but  did 
not  hold  in  Civil  Cases."     This,  howe\cr,  is  clearly  not  law  at  the 
present  day.^ 

The  form  of  the  decree  in  Lansdoivne  x-Lajisdowne,  viz.,  that  the 
deeds  should  be  delivered  up,  leads  me  naturally  to  the  considera- 
tion of  the  superior  efiicacy  of  the  equity  jurisdiction  in  cases  of 
"mistake."  Here,  as  in  cases  of  "fraud,"  we  find  the  power  of 
ordering  the  delivering  up  of  the  impeached  instrument,  imparting 
to  the  equitable  jurisdiction  a  completeness  \ainly  sought  for  at 
law.     As  respects  the  other  ingredients  of  superiority  which  the 

^  But  see  Keener,  Quasi  Contracts,  85  fT;  Woodward,  Recovery  of  Money 
Paid  under  Mistake  of  Law,  5  Columbia  Law  Rev.  360;  Stadden,  Error  of  Law, 
8  Columbia  Law  Rev.  476. 


QUALIFICATIONS  471 

equitable  jurisdiction  has  been  mentioned  as  possessing  in  cases  of 
"fraud"  over  that  at  law,  both  of  which  exist  also  in  cases  of  "mis- 
take," we  may  observe,  that  while  on  the  one  hand,  the  discovery 
obtainable  through  the  medium  of  the  equity  courts  only  was, 
perhaps,  of  somewhat  less  importance  in  cases  of  "mistake";  so, 
on  the  other  hand,  the  power  to  qualify,  mould,  and  alter,  instead 
of  simply  annulling  and  undoing,  was,  in  cases  of  "mistake,"  of 
even  greater  importance.  Take,  as  a  specimen  of  mistake,  the 
case  of  instructions  given  to  prepare  a  settlement  of  the  lands  of 
a  lady  on  the  occasion  of  her  marriage.  Assume  that  under  special 
circumstances,  it  had  been  arranged  that,  after  limitations  to  the 
lady  and  her  husband  for  their  lives,  the  property  should  go  to 
such  uses  in  favor  of  the  children  as  the  wife  alone  should,  by  deed 
or  will,  appoint;  and  that,  inadvertently,  the  power  of  appoint- 
ment was  given  to  the  husband  and  wife  and  the  survivor,  in  the 
usual  form.  Now,  what  is  wanted  is  not  to  undo  the  settlement, 
but  merely  to  alter  it  and  make  it  what  the  parties  intended  it 
should  be.  The  deed  requires  to  be  "reformed,"  as  the  technical 
phrase  is;  and  of  the  entire  equity  jurisdiction,  derivable  from  the 
three  heads  of  fraud,  accident  and  mistake,  it  would  be  difficult  to 
name  any  portion  which  is  more  beneficial,  or  more  judiciously 
exercised,  than  that  of  reforming  deeds  in  cases  of  mistake. 


(c)    Qualifications 
(i)  Conditions. 
Blackstone,  Commentaries,  II,  154-157. 

An  estate  on  condition  expressed  in  the  grant  itself  is  where  an 
estate  is  granted,  either  in  fee-simple,  or  otherwise  with  an  express 
qualification  annexed,  whereby  the  estate  granted  shall  either 
commence,  be  enlarged,  or  be  defeated,  upon  performance  or  breach 
of  such  qualification  or  condition.  These  conditions  are  therefore 
either  precedent,  or  subsequent.  Precedent  are  such  as  must  happen 
or  be  performed  before  the  estate  can  vest  or  be  enlarged :  subse- 
quent are  such,  by  the  failure  or  non-performance  of  which  an  estate 
already  vested  may  be  defeated.  Thus,  if  an  estate  for  life  be 
limited  to  A  upon  his  marriage  with  B,  the  marriage  is  a  prece- 
dent condition,  and  till  that  happens  no  estate  is  vested  in  A.  Or, 
if  a  man  grant  to  his  lessee  for  years,  that  upon  payment  of  a 
hundred  marks  within  the  term  he  shall  have  the  fee,  this  also  is  a 
condition  precedent,  and  the  fee-simple  passeth  not  till  the  hundred 


472  ACTS 

marks  be  paid.  But  if  a  man  grants  an  estate  in  fee-simple,  reserv'- 
ing  to  himself  and  his  heirs  a  certain  rent;  and  that  if  such  rent 
be  not  paid  at  the  time  limited,  it  shall  be  lawful  for  him  and  his 
heirs  to  re-enter,  and  avoid  the  estate:  in  this  case  the  grantee  and 
his  heirs  have  an  estate  upon  condition  subsequent,  which  is  de- 
feasible if  the  condition  be  not  strictly  performed.  .  .  .  And,  on 
the  breach  of  any  of  these  subsequent  conditions,  by  the  failure  of 
these  contingencies;  by  the  grantee's  not  continuing  tenant  of 
the  manor  of  Dale,  by  not  having  heirs  of  his  body,  or  by  not 
continuing  sole;  the  estates  which  were  respectively  vested  in 
each  grantee  are  wholly  determinable  and  void, 

A  distinction  is,  however,  made  between  a  condition  in  deed  and 
a  limitation,  which  Littleton  denominates  also  a  condition  in  law. 
For  when  an  estate  is  so  expressly  confined  and  limited  by  the  words 
of  its  creation,  that  it  cannot  endure  for  any  longer  time  than  till 
the  contingency  happens  upon  which  the  estate  is  to  fail,  this  is 
denominated  a  limitation :  as  when  land  is  granted  to  a  man  so 
long  as  he  is  parson  of  Dale,  or  ivhile  he  continues  unmarried,  or 
iintil  out  of  the  rents  and  profits  he  shall  have  made  500  /.,  and  the 
like.  In  such  case  the  estate  determines  as  soon  as  the  contin- 
gency happens  (when  he  ceases  to  be  parson,  marries  a  wife,  or 
has  received  the  500  I.),  and  the  next  subsequent  estate,  which 
depends  upon  such  determination,  becomes  immediately  vested, 
without  any  act  to  be  done  by  him  who  is  next  in  expectancy. 
But  when  an  estate  is,  strictly  speaking,  upon  condition  in  deed 
(as  if  granted  expressly  npon  condition  to  be  void  upon  the  pay- 
ment of  40  /.  by  the  grantor,  or  so  that  the  grantee  continues  unmar- 
ried, or  provided  he  goes  to  York,  etc.),  the  law  permits  it  to  endure 
beyond  the  time  when  such  contingency  happens,  unless  the  grantor 
or  his  heirs  or  assigns  take  ad\'antage  of  the  breach  of  the  condition, 
and  make  either  an  entry  or  a  claim  in  order  to  avoid  the  estate. 
Yet,  though  strict  words  of  condition  be  used  in  the  creation  of  the 
estate,  if  on  breach  of  the  condition  the  estate  be  limited  over  to  a 
third  person,  and  does  not  immediately  re\"ert  to  the  grantor  or  his 
representatives  (as  if  an  esteite  be  granted  by  A  to  B,  on  condition 
that  within  two  years  B  intermarry  with  C,  and  on  failure  thereof 
then  to  D  and  his  heirs),  this  the  law  construes  to  be  a  limitation 
and  not  a  condition:  because  if  it  were  a  condition,  then,  upon  the 
breach  thereof,  only  A  or  his  representati\-es  could  avoid  the  estate 
by  entry,  and  so  D's  remainder  might  be  defeated  by  their  neglect- 
ing to  enter;  but,  when  it  is  a  limitation,  the  estate  of  B  determines, 


QUALIFICATIONS  473 

and  that  of  D  commences,  and  he  may  enter  on  the  lands  the 
instant  that  the  failure  happens.  So  also,  if  a  man  by  his  will 
devises  land  to  his  heir  at  law,  on  condition  that  he  pays  a  sum  of 
money,  and  for  non-payment  devises  it  over,  this  shall  be  consid- 
ered as  a  limitation ;  otherwise  no  advantage  could  be  taken  of  the 
non-payment,  for  none  but  the  heir  himself  could  have  entered  for 
a  breach  of  condition. 

These  express  conditions,  if  they  be  impossible  at  the  time  of 
their  creation,  or  afterwards  become  impossible  by  the  act  of  God 
or  the  act  of  the  feofTor  himself,  or  if  they  be  contrary  to  law,  or 
repugnant  to  the  nature  of  the  estate,  are  void.  In  any  of  which 
cases,  if  they  be  conditions  subsequent,  that  is,  to  be  performed 
after  the  estate  is  vested,  the  estate  shall  become  absolute  in  the 
tenant.  As  if  a  feoffment  be  made  to  a  man  in  fee-simple,  on  con- 
dition that  unless  he  goes  to  Rome  in  twenty-four  hours;  or  unless 
he  marries  with  Jane  S,  by  such  a  day,  (within  which  time  the 
woman  dies,  or  the  feoffor  marries  her  himself;)  or  unless  he  kills 
another;  or  in  case  he  alienes  in  fee;  that  then  and  in  any  of  such 
cases  the  estate  shall  be  vacated  and  determine:  here  the  condition 
is  void,  and  the  estate  made  absolute  in  the  feoffee.  For  he  hath 
by  the  grant  the  estate  vested  in  him,  which  shall  not  be  defeated 
afterwards  by  a  condition  either  impossible,  illegal,  or  repugnant. 
But  if  the  condition  be  precedent,  or  to  be  performed  before  the 
estate  vests,  as  a  grant  to  a  man  that,  if  he  kills  another  or  goes  to 
Rome  in  a  day,  he  shall  have  an  estate  in  fee;  here,  the  void  con- 
dition being  precedent,  the  estate  which  depends  thereon  is  also 
void,  and  the  grantee  shall  take  nothing  by  the  grant:  for  he  hath 
no  estate  until  the  condition  be  performed. 

Langdell,  Summary  of  Contracts,  §§  26-31. 

26.  A  covenant  or  promise  is  conditional  when  its  perfoimance 
depends  upon  a  future  and  uncertain  e\ent.  The  futurity  and 
uncertainty  of  the  e\ent  ha\e  reference  to  the  time  when  the 
covenant  or  promise  is  made.  If  the  event  has  then  ceased  to  be 
future  and  uncertain,  though  not  to  the  knowledge  of  the  covenantor 
or  promisor,  it  will  not  constitute  a  condition.  Nor  is  it  sufficient 
that  the  event  be  future,  unless  it  be  also  uncertain;  and  the  un- 
certainty must  not  be  merely  as  to  the  time  when  the  event  will 
happen,  but  as  to  whether  it  will  ever  happen.  It  is  sufficient, 
however,  that  the  event  is  uncertain,  for  then  it  must  necessarily 


474  ACTS 

be  future  also.  It  may  be  an  e\ent  over  which  neither  of  the 
parties  has  any  control,  or  it  may  be  one  within  the  control  of  the 
co\enantee  or  promisee,  e.g.,  where  it  consists  in  his  doing  or  not 
doing  a  certain  act.  It  may  also  consist  of  an  act  to  be  done  or  not 
to  be  done  by  the  covenantor  or  promisor,  e.g.,  where  one  covenants 
or  promises  to  do  a  specific  thing,  and  in  the  event  of  his  not  doing 
it  to  pay  $1,000;  but  it  cannot  depend  upon  the  mere  will  and 
pleasure  of  the  covenantor  or  promisor,  for  such  an  event  would 
destroy  the  covenant  or  promise  instead  of  making  it  conditional. 
Thus,  if  A  promise  B  to  buy  the  latter's  horse  at  such  a  price  if  he 
likes  him  after  a  week's  trial,  the  promise  will  be  void  unless  it  can 
be  interpreted  as  a  promise,  for  example,  to  buy  the  horse  unless  a 
week's  trial  shall  bring  to  light  some  fault  in  him  of  which  the  buyer 
was  ignorant  when  he  made  the  promise. 

27.  A  covenant  or  promise  cannot  be  conditional  unless  it  first 
exist;  it  is  only  the  performance  of  it  that  the  condition  renders 
uncertain.  An  event,  therefore,  which  must  happen  before  a 
covenant  or  promise  is  made,  does  not  make  the  covenant  or  promise 
conditional.  If  the  event  happens,  the  covenant  or  promise  is 
absolute;  if  it  does  not  happen,  no  covenant  or  promise  is  made. 
In  such  cases  the  condition  is  made  when  the  ofTer  is  made,  and  the 
condition  is  annexed  to  the  ofTer,  and  becomes  a  part  of  it;  but 
before  the  covenant  or  promise  is  made,  the  event  has  ceased  to  be 
uncertain,  and  hence  the  condition  has  ceased  to  exist.  In  short,  it 
is  the  ofifer,  and  not  the  covenant  or  promise,  that  is  conditional, 
The  consideration  of  every  unilateral  promise  is  necessarily  a  con- 
dition of  this  nature  until  it  is  given  or  performed,  while  the  con- 
sideration of  a  unilateral  covenant  may  be  a  condition  of  the 
covenant  or  of  the  ofifer,  according  to  the  intention  of  the  covenantor. 

28.  When  the  making  of  a  covenant  or  promise  depends  upon 
whether  a  certain  event  has  already  happened,  there  is  no  condition 
of  any  kind.  If  the  event  has  happened,  the  covenant  or  promise 
is  absolute  from  the  beginning;  if  the  event  has  not  happened, 
there  is  no  covenant  or  promise  at  all.  Thus,  in  Ollive  v.  Booker, 
the  court  having  decided  that  the  defendant's  promise  to  take  the 
vessel  depended  upon  her  "having  sailed  three  weeks  ago,"  and 
that  event  not  having  happened,  it  necessarily  followed  that  the 
defendant  had  made  no  promise.  So  in  Behn  v.  Biirness,  the  state- 
ment that  the  vessel  was  "now  in  the  port  of  Amsterdam"  being 
untrue,  it  followed  from  the  decision  of  the  court  that  the  defendant 
had  made  no  i)romisc 


QUALIFICATIONS  475 

29.  As  the  event  which  is  to  render  a  covenant  or  promise  con- 
ditional must  not  happen  before  the  covenant  or  promise  is  made, 
so  it  must  not  happen  after  it  is  performed;  for  the  effect  of  the 
condition  must  be  to  render  the  performance  uncertain,  whereas 
an  event  happening  after  performance  cannot  affect  the  covenant 
or  promise  in  any  manner.  Conditions  cannot  therefore  be  divided 
into  classes  with  reference  to  their  relation  in  point  of  time  either  to 
the  making  or  to  the  performance  of  the  covenant  or  promise;  nor 
can  they  with  reference  to  the  nature  of  the  event,  for  any  uncertain 
event  which  is  to  happen,  if  at  all,  between  the  making  of  the 
covenant  or  promise  and  its  performance  (or  concurrently  with  the 
latter  at  latest)  may  constitute  a  condition  of  any  kind.  In  truth, 
the  division  of  conditions  into  conditions  precedent,  concurrent 
conditions,  and  conditions  subsequent,  is  designed  to  mark  the 
relation  in  point  of  time  between  the  event  which  constitutes  the 
condition  and  the  obligation  of  the  covenant  or  promise.  What  that 
relation  is  in  any  given  case  depends  upon  when  the  obligation 
of  the  covenant  or  promise  is  to  arise,  and  that  depends  upon  the 
intention  of  the  covenantor  or  promisor.  Thus,  if  the  covenant 
or  promise  is  not  designed  to  impose  any  obligation  or  confer  any 
right  until  the  event  happens,  the  condition  is  said  to  be  precedent, 
i.e.,  it  precedes  the  obligation  in  time.  So,  if  the  covenant  or 
promise  is  designed  to  impose  an  obligation  and  confer  a  right  from 
the  moment  when  it  is  made,  and  so  before  the  event  happens,  the 
condition  is  said  to  be  subsequent,  i.g.,  subsequent  in  time  to  the 
obligation.  Finally,  if  the  covenant  or  promise  is  designed  to  im- 
pose an  obligation  and  confer  a  right  at  the  moment  when  the 
event  happens,  the  condition  is  said  to  be  concurrent,  i.e.,  con- 
current in  time  with  the  obligation.  In  this  last  case  the  event 
which  constitutes  the  condition  always  consists  of  some  act  to  be 
done  by  the  covenantee  or  promisee,  and  the  object  of  having  the 
obligation  arise  at  the  very  moment  when  the  event  happens 
(rather  than  afterwards)  is  to  enable  the  covenantee  or  promisee  to 
insist  upon  performance  of  the  covenant  or  promise  at  the  same 
moment  that  he  performs  the  condition ;  and  it  is  this  right  of  the 
covenantee  or  promisee  that  constitutes  the  chief  difference  between 
conditions  precedent  and  concurrent  conditions.  Hence  the  idea 
has  naturally  arisen  that  the  relation  in  time  between  the  per- 
formance of  the  covenant  or  promise  and  the  performance  of  the 
condition  is  the  cause,  instead  of  the  consequence,  of  the  condition's 
being  concurrent. 


476  ACTS 

30.  Between  conditions  precedent  and  conditions  subsequent 
the  differences  are  important  and  radical.  In  case  of  a  condition 
precedent,  as  the  obHgation  to  perform  the  covenant  or  promise  does 
not  arise  until  the  event  happens,  of  course  until  then  there  can  be 
no  breach  of  the  obligation,  and  hence  no  action  can  be  brought; 
and  when  an  action  is  brought,  it  is  a  necessary  part  of  the  plain- 
tiff's case  to  allege  and  prove  that  the  event  has  happened.  In 
the  case  of  a  condition  subsequent,  on  the  other  hand,  as  the  obli- 
gation to  perform  the  covenant  or  promise  arises  the  moment 
that  the  latter  is  made,  a  breach  of  the  obligation  has  no  connection 
with  the  happening  of  the  event,  and  may  take  place  either  before 
or  after  the  event  happens.  When  an  action  is  brought,  therefore, 
the  plaintiff  can  make  out  his  case  without  any  reference  to  the 
condition;  and  if  in  truth  the  event  has  happened,  and  the  defend- 
ant is  in  consequence  not  bound  to  perform  his  covenant  or  promise, 
the  burden  lies  upon  him  to  allege  and  prove  that  fact.  A  con- 
dition subsequent,  therefore,  is  always  a  defense,  and  an  affirmative 
one.  While  the  performance  of  the  covenant  or  promise  depends 
upon  the  happening  of  the  event  in  both  cases,  it  depends  upon  it 
in  a  different  sense  in  the  one  case  from  what  it  does  in  the  other: 
in  case  of  a  condition  precedent,  the  covenant  or  promise  is  not 
to  be  performed  unless  the  event  happens;  while,  in  the  case  of  a 
condition  subsequent,  it  is  not  to  be  performed  if  it  happens.  A 
condition  precedent  is  an  element  in  the  creation  of  an  obligation : 
a  condition  subsequent  is  one  of  the  means  by  which  an  obligation 
is  extinguished. 

31.  When  it  is  said  that,  in  the  case  of  a  condition  subsequent, 
the  obligation  to  perform  arises  immediately  upon  the  making 
of  the  covenant  or  promise,  it  must  not  be  inferred  that  performance 
is  necessarily  to  take  place  immediately.  An  obligation  may  exist 
now  to  do  a  thing  at  a  future  time,  and  it  may  or  may  not  be  certain 
when  that  time  will  arrive,  provided  it  be  certain  that  it  will  arrive 
some  time;  and  yet  the  performance  of  that  obligation  may  be 
liable  to  be  defeated  by  a  condition  subsequent.  It  is  possible, 
therefore,  for  an  obligation  to  be  extinguished  by  a  condition 
subsequent  before  the  time  for  performing  the  obligation  arrives, 
and  hence  before  any  right  of  action  accrues.  Yet  if  an  action 
be  brought  after  the  time  for  performance  arrives,  the  plaintiff  will 
be  able  to  state  and  prove  facts  which  will  entitle  him  to  recover, 
unless  the  defendant  sets  up  and  proves  his  defense  arising  from  the 
condition  subsequent. 


QUALIFICATIONS  477 

(ii)  Time. 

Combe  v.  Pitt,  King's  Bench,  1763  (3  Burr.  1423, 1434). 

Lord  Mansfield:  But  though  the  law  does  not,  in  general,  allow 
of  the  fraction  of  a  day,  yet  it  admits  it  in  cases  where  it  is  necessary 
to  distinguish.  And  I  do  not  see  why  the  very  hour  may  not  be  so 
too,  where  it  is  necessary  and  can  be  done :  for,  it  is  not  like  a  mathe- 
matical point,  which  cannot  be  divided. 

Lester  v.  Garland,  in  Chancery,  Before  Sir  William  Grant, 
M.  R.  1808  (15  Ves.  248,  252). 

The  Master  of  the  Rolls:  The  question  in  this  cause  is,  whether 
Mrs.  Pointer  within  six  calendar  months  after  the  decease  of  her 
brother  gave  the  security,  required  by  his  Will,  as  the  condition, 
upon  which  her  children  should  take  the  benefit  of  his  residuary 
estate.  He  died  upon  the  12th  of  January,  1805,  at  a  quarter  before 
nine  o'clock  in  the  evening.  The  security  required  was  executed 
upon  the  12th  of  July  following,  about  seven  in  the  evening.  Com- 
puting the  time  de  momento  in  momentum,  six  calendar  months 
had  not  elapsed:  but  it  is  admitted,  that  this  is  not  the  way  in 
which  the  computation  is  legally  to  be  made.  The  question  is, 
whether  the  day  of  Sir  JoJm  Lester^ s  death  is  to  be  included  in  the 
six  months,  or  to  be  excluded:  if  the  day  is  included,  she  did  not, 
if  it  is  excluded,  she  did,  give  the  required  security  before  the  end 
of  the  last  day  of  the  six  months;  and  therefore  did  sufficiently 
comply  with  the  condition. 

It  is  said  for  the  Plaintiffs,  that  upon  this  subject  a  g£neral  rule 
has  been  by  decision  established;  that,  where  the  time  is  to  run 
from  the  doing  of  an  act,  (and  for  the  purpose  of  this  question  it 
must  extend  to  the  happening  of  an  event)  the  day  is  always  to  be 
included.  Whatever  dicta  there  may  be  to  that  effect,  it  is  clear, 
the  actual  decisions  cannot  be  brought  under  any  such  general 
rule.  The  presentment  of  a  bill  of  exchange  to  the  sight  of  the 
drawee  is  an  act  done;  and  yet  it  is  now  settled,  that  the  day,  upon 
which  it  is  presented,  is  to  be  excluded.  .  .  .  The  Annuity  Act 
provides,  that  the  twenty  days  shall  run  from  the  execution  of 
the  deed.  The  execution  of  the  deed  is  undoubtedly  an  act  done: 
yet  according  to  the  decisions  the  day  upon  which  the  deed  was 
executed,  is  excluded.  So,  in  a  case  in  the  House  of  Lords,  in  1796, 
in  which  I  was  Counsel,  Mercer  v.  Oglivie,  where  the  question  was, 
whether  within  the  meaning  of  the  Act  of  Parliament  in  Scotland 
"for  regulating  deeds  done  on  death-bed"  a  man  had  lived  sixty 


478  ACTS 

days  after  the  making  and  granting  of  the  deed,  it  was  held,  that 
the  day,  on  which  the  deed  was  made  and  granted,  was  to  be 
excluded.     .     .     . 

It  is  not  necessary  to  lay  down  any  general  rule  upon  this  sub- 
ject: but  upon  technical  reasoning  I  rather  think,  it  would  be  more 
easy  to  maintain,  that  the  day  of  an  act  done,  or  an  event  happening, 
ought  in  all  cases  to  be  excluded,  than  that  it  should  in  all  cases  be 
included.  Our  law  rejects  fractions  of  a  day  more  generally  than 
the  civil  law  does.  The  effect  is  to  render  the  day  a  sort  of  indivi- 
sible point;  so  that  any  act,  done  in  the  compass  of  it,  is  no  more 
referable  to  any  one,  than  to  any  other,  portion  of  it;  but  the  act 
and  the  day  are  co-extensive ;  and  therefore  the  act  cannot  properly 
be  said  to  be  passed,  until  the  day  is  passed.  This  reasoning  was 
adopted  by  Lord  Rosslyn  and  Lord  Thurloiv  in  the  case  before  men- 
tioned of  Mercer  v.  Oglivie.  ...  In  the  present  case  the  technical 
rule  forbids  us  to  consider  the  hour  of  the  testator's  death  at  the 
time  of  his  death;  for  that  would  be  making  a  fraction  of  a  day. 
The  day  of  the  death  must  therefore  be  the  time  of  the  death ;  and 
that  time  must  be  past,  before  the  six  months  can  begin  to  run. 
The  rule,  contended  for  on  behalf  of  the  Plaintiffs,  has  the  effect 
of  throwing  back  the  event  into  a  day,  upon  which  it  did  not  hap- 
pen; considering  the  testator  as  dead  upon  the  11th,  instead  of  the 
12th,  of  January;  for  it  is  said,  the  whole  of  the  12th  is  to  be  com- 
puted as  one  of  the  days  subsequent  to  his  death.  There  seems  to 
be  no  alternative  but  either  to  take  the  actual  instant,  or  the  entire 
day,  as  the  time  of  his  death;  and  not  to  begin  the  computation 
from   the  preceding  day. 


Smith  v.  County  Commissioners  of  Jefferson  County, 
Supreme  Court  of  Colorado,  1887  (10  Col.  17,  22). 
Beck,  C.  J.:  In  this  connection  counsel  for  the  appellee  asks 
for  an  opinion  "as  to  what  length  of  time  will  constitute  a  day's 
service  for  the  superintendent."  We  answer,  the  law  does  not 
recognize  fractions  of  days;  and,  when  it  proxidcs  a  per  diem  com- 
pensation for  the  time  necessarily  devoted  to  the  duties  of  an  office, 
the  officer  is  entitled  to  this  daily  compensation  for  each  day  on 
which  it  becomes  necesssary  for  him  to  perform  any  substantial 
official  service,  if  he  does  perform  the  same,  regardless  of  the  time 
occupied  in  its  performance. 


TORTS  479 


3.    TORTS  1 


Hearn,  Theory  of  Legal  Duties  and  Rights,  152-158. 

Wrong  is  the  contrary  of  right,  and  a  wrong  is  the  contrary  of  a 
right.     The  same  ambiguity  therefore  which  affects  right  exists  in 
wrong.     As  the  former  te-m  means  conformity  to  a  standard,  so  the 
latter  term  means  nonconformity  to   a  standard.     Consequently, 
unless  the  standard  be  ascertained  and  recognized,  all  reasoning  on 
the  subject  of  right  and  wrong  is  mere  waste  of  words.     In  the  case 
of  legal  rights  and  legal  wrongs,  as  a  right  means  that  a  relative  duty 
is  obeyed  or  is  likely  to  be  obeyed,  so  a  wrong  means  that  a  relative 
duty  has  actually  been  broken.     A  right  exists  before  a  breach  of 
the  duty;  but  a  wrong  does  not  arise  until  the  breach  has  occurred. 
A  wrong  therefore,  like  a  right,  is  simply  a  legal  relation.     But 
these  relations  are  co-ordinate.     They  result  from  a  common  duty. 
A  wrong  is  not  the  violation  of  a  right,  but  the  violation  of  a  duty. 
It  is  true  that  the  former  expression  is  ordinarily  used ;    but  that 
expres^on    is    a    mere  abridgment,  and,    like   other   abridgments, 
becomes  misleading.     It  is  merely  a  metaphor  to  say  that  a  right, 
which  is  only  a  relation,  is  broken.     It  is  the  duty  cast  upon  the 
party  to  whom  the  command  is  given  —  the  act  that  is  to  be  done 
or  the  forbearance  that  is  to  be  observed  —  that  is  disobeyed.     So 
long  as  that  duty  is  performed,  all  is  well,  and  no  difficulty  arises. 
When  that  duty  is  not  performed,  the  donee  of  the  right  is  entitled 
to  seek  legal  redress.     Thus  a  right  has  no  independent  existence. 
It   denotes  merely  a   certain  course  of   proceedings  taken  by  its 
donee  upon  the  breach  of  a  certain  species  of  duty.     When,  there- 
fore, we  speak  of  the  violation  of  a  right  or  of  its  infringement,  we 
really  mean  the  violation  or  the  infringement  of  a  duty  in  respect 
of  which  a  right  exists,  so  far  as  such  violation  or  infringement 
affects  the  donee  of  the  right.    When  such  a  duty  has  been  so  broken, 
a  wrong  has  been  done  to  the  donee  of  the  right,  and  for  that  wrong 
the  law  will  find  a  remedy. 

Even  at  the  expense  of  some  repetition,  I  may  be  permitted  to 
bring  together  all  the  parts  of  a  command  of  the  State  which  in- 
volves rights  and  wrongs.  The  State  commands  its  Subject  to  do 
or  observe  for  the  benefit  of  a  Third  Party  some  act  or  forbearance. 


^  The  student  may  be  referred  to  Bigelow,  Torts  (8  ed.);  Salmond,  Torts 
(2  ed.);  Wigmore,  Summary  of  the  Principles  of  Torts,  Select  Cases  on  the  Law 
of  Torts,  vol.  2,  appendix  A. 


480  ACTS 

Thereupon  that  Subject  comes  under  a  duty,  and  this  duty  the 
State  will,  if  need  be,  enforce.  In  these  circumstances  the  Third 
Party  has  a  right;  that  is,  he  may  enjoy  the  ad\antage  resulting 
from  the  performance  of  the  Subject's  duty,  and  he  may  complain 
to  the  State  if  that  performance  be  intermitted.  So  long  as  the 
Subject  continues  to  perform  his  duty,  all  is  well.  The  State  is 
satisfied  wath  his  conduct.  The  Third  Party  enjoys  his  right.  No 
unpleasantness  arises.  But  if  the  Subject  become  disobedient,  a 
new  set  of  relations  is  introduced.  The  Subject  incurs  the  dis- 
pleasure of  the  State,  and  is  liable  to  punishment  or  other  painful 
consequence.  The  Third  Party  no  longer  enjoys  a  right,  but  sus- 
tains a  wrong.  For  this  wrong  the  Subject  is  liable  to  make  some 
appropriate  reparation.  Liability  means  that,  upon  proper  pro- 
ceedings being  taken  and  proper  proof  adduced,  a  court  of  com- 
petent jurisdiction  may  order  the  offender  to  suffer  suitable  punish- 
ment or  to  make  suitable  amends,  or  both  to  suffer  punishment  and 
to  make  amends,  as  the  nature  of  the  case  requires.  When  the. 
disobedience  affects  the  donee  of  a  right,  it  is  usually  called  a  wrong. 
The  term  ofTense  appears  to  be  a  general  name,  and  to  include  both 
crimes  and  wrongs.  Thus  every  command  produces  or  may  produce 
two  sets  of  relations.  One  of  these  is  normal  and  the  other  is 
abnormal.  If  the  command  at  once  accomplish  its  object,  there 
follow  from  it  obedience,  enjoyment  of  rights,  freedom  from  legal 
molestation.  If  it  do  not  directly  accomplish  its  object,  there 
follow  from  it  disobedience,  wrongs,  legal  proceedings  and  the  painful 
consequences  that  such  proceedings  involve. 

Every  offense  is  a  breach  of  duty.  Every  breach  of  duty  either 
is  punishable  or  is  not  punishable.  Punishable  offenses  may  be 
prosecuted  either  by  indictment  or  other  like  proceedings  which 
we  need  not  now  consider,  or  before  justices  of  the  peace  in  the 
exercise  of  their  summary  jurisdiction.  Indictable  offenses,  as 
they  may  be  called,  are  of  tw^o  kinds.  They  are  either  crimes  or 
misdemeanors.  Misdemeanor  is  a  general  name  for  all  indictable 
offenses  other  than  crimes.  Crimes  are  a  species  of  indictable 
offenses.  They  have  certain  characteristic  incidents  that  attach 
to  them  upon  charge  and  upon  conviction.  Where  a  man  is  charged 
with  any  crime,  he  may  be  arrested  without  warrant,  and  he  is 
bailable  not  as  of  right  but  only  at  the  discretion  of  the  court.  In 
other  cases,  unless  special  statutory  authority  be  given,  a  warrant 
is  always  required;  and  an  accused  person,  upon  the  production 
of  sufificient  sureties  to  a  reasonable  amount,  is  bailable  as  of  right. 


TORTS  481 

Where  a  man  is  convicted  of  a  crime,  he  incurs  in  addition  to  the 
punishment  specified  for  the  offense,  certain  disabiHties.  He  cannot 
sit  in  ParHament  or  in  any  Municipal  Council.  He  cannot  exercise 
any  Parliamentary  or  Municipal  franchise.  He  cannot  hold  any 
office  under  the  Crown  or  any  public  employment.  He  cannot 
serve  on  any  jury.  If  he  be  an  office-holder  or  a  pensioner  in  any 
form,  his  office  or  his  pension  or  other  allowance  is  forfeited  unless 
he  be  pardoned  within  two  months  from  his  conviction  or  before 
his  office  be  filled.  Further,  his  rights  of  maintaining  action  and 
of  dealing  with  property  and  of  making  contracts  are  suspended 
during  his  term  of  punishment,  and  his  property  is  placed  in  the 
hands  of  a  curator.  None  of  these  consequences  follow  a  con- 
viction for  a  misdemeanor. 

Whether  any  given  offense  is  a  crime  or  a  misdeameanor  is  a 
question  which  depends  upon  the  terms  of  the  law  by  which  that 
offense  is  created.  I  have  already  observed  that  no  general  rule 
on  the  subject  is  available,  except  the  obvious  one  that  those 
offenses  are  described  as  crimes  which  appear  to  the  Legislature 
of  the  day  to  be  the  most  dangerous  in  their  character,  and,  con- 
sequently, the  most  in  need  of  repression.  Offenses  over  which 
justices  have  summary  jurisdiction  are,  if  we  speak  in  the  same 
rough  way,  those  of  a  less  grave  character.  Of  these,  too,  it  must  be 
said  that  the  jurisdiction  of  the  justices,  whatever  may  be  the 
character  of  the  offense,  depends  entirely  upon  express  statutory 
grant.  In  some  cases  such  jurisdiction  is  given  in  circumstances 
which  otherwise  would  amount  to  a  crime,  and  in  all  cases  where 
their  jurisdiction  is  not  distinctly  taken  away,  the  superior  courts 
exercise  a  concurrent  authority.  Where,  in  the  opinion  of  the 
justices,  any  charge  appears  to  be  of  a  serious  nature,  they  are  bound 
to  abstain  from  adjudication  and  to  send  the  case  for  trial.  But 
those  minor  varieties  of  serious  offenses  with  which  they  usually 
deal  are  not  regarded  as  crimes,  and  practically  no  superior  court 
interferes  with  their  proceedings  in  any  smaller  breach  of  the  law. 
Thus  the  tendency  to  differentiation  in  criminal  procedure  is  well 
marked.  The  minor  offenses  are  heard  and  determined  by  justices. 
The  graver  offenses  come  before  the  superior  courts.  The  dif- 
ferences of  procedure  in  these  courts  according  to  the  nature  of  the 
offense  no  longer  exist.  But  a  clear  line  is  drawn  between  those 
ordinary  aberrations  to  which  all  men  are  in  a  greater  or  less  degree 
liable,  and  those  darker  offenses  from  which  the  moral  sense  of  the 
community  revolts. 


482  ACTS 

We  can  now  appreciate  a  distinction  which  has  caused  much 
trouble  to  jurists,  that,  namely,  between  crimes  (in  the  wide  sense) 
and  torts.  The  distinction  is  less  important  than  the  discussion 
upon  it  might  seem  to  indicate.  In  practice  no  person  is  either 
aided  or  embarrassed  by  it.  In  theory  it  is  altogether  useless  as  a 
basis  for  any  classification  of  law.  It  presents,  however,  certain 
features  which  require  explanation.  It  does  not  arise  from  any 
difference  in  the  gravity  of  the  offenses  that  these  two  words 
respectively  imply.  Such  a  difference  does  indeed  generally  exist, 
but  it  is  not  necessary.  A  slander,  for  example,  is  morally  worse, 
and  its  pecuniary  consequences  may  be  more  serious,  than  the 
neglect  to  register  a  young  dog  within  the  first  half  of  January. 
Yet  the  former  is  only  a  tort,  and  the  latter  a  punishable  offense, 
although  it  is  dealt  with  by  an  inferior  court.  Nor  is  the  difference 
one  of  procedure  alone.  These  differences,  that  of  gravity  and 
that  of  procedure,  sufficiently  distinguish  indictable  offenses  and 
those  less  serious  offenses  in  which  justices  of  the  peace  have  a 
summary  jurisdiction.  They  mark  sufficiently  at  least  for  practical 
purposes  the  subdivisions  of  one  class  of  breaches  of  duty.  But 
as  between  the  classes  of  these  breaches  there  is  a  further  difference. 
They  differ  not  only  in  degree  and  in  procedure,  but  also  in  the 
character  of  the  duties  which  are  broken  and  in  the  sanctions  for 
such  breach. 

The  governing  principle  is,  as  we  might  expect,  the  nature  of  the 
duties.  If  the  duty  broken  be  absolute,  the  consequence  is  a  pun- 
ishable offense.  If  it  be  particular,  the  consequence  is  a  breach 
of  contract  or  other  obligation.  If  it  be  general,  the  consequence 
is  a  tort  or  both  a  punishable  offense  and  a  tort.  In  all  these  cases 
the  sanction  is  different,  the  person  who  sets  in  motion  the  law  is 
different,  and  the  procedure  is  different.  The  breach  of  an  absolute 
duty  is  followed  by  punishment;  the  penalty  is  enforced  by  the 
Crown,  and  the  complaint  is  determined  by  those  tribunals  and 
those  modes  of  procedure  which  we  call  criminal.  The  breach  of  a 
particular  duty  is  now  followed  by  compensation  or  other  appro- 
priate remedy.  The  person  who  sets  the  law  in  motion  is  the  donee 
of  the  right.  The  case  is  heard  and  determined  in  the  manner  and 
by  the  courts  which,  in  contradistinction  from  those  that  are  called 
criminal,  are  called  civil.  The  breach  of  a  general  duty  is  pursued 
in  both  or  either  of  the  above  methods.  If  it  be  pursued  in  the 
same  manner  in  which  it  would  be  pursued  if  the  duty  broken  were 
absolute,  the  case  is  regarded  as  a  punishable  offense.    If  it  be 


TORTS  483 

pursued  in  the  same  manner  in  which  it  would  have  been  pursued  if 
the  duty  broken  were  particular,  the  case  is  regarded  as  a  tort. 
Whether  it  be  pursued  exclusively  in  the  one  way  or  in  the  other 
depends  upon  the  terms  of  the  law  by  which  the  duty  is  created. 
But,  as  general  duties  imply  two  parties  interested  in  their  perfor- 
mance, namely,  the  commander,  that  is  the  State,  and  the  donee 
of  the  right,  the  breach  of  such  a  duty  affects  both  of  these  parties; 
and  thus  the  same  offense  may  be  treated  both  as  a  wrong  to  the 
State  which  deserves  punishment  and  as  a  tort  l)y  which  special 
damage  is  caused  to  a  particular  person.  Thus,  defrauding  the 
public  revenue  is  a  punishable  offense.  In  some  of  its  forms  it  is 
punished  by  fine  and  forfeiture  inflicted  either  by  the  Commissioner 
of  Customs  or  before  justices.  In  other  cases  it  is  an  indictable 
offense,  and  is  punishable  on  conviction  before  the  Supreme  Court 
by  imprisonment  for  a  long  term  with  or  without  hard  labor. 
Disorderly  conduct  in  the  streets  is  a  punishable  offense  - —  not  a 
very  heinous  one,  it  is  true,  but  still  such  an  offense.  One  man  agrees 
to  buy  property  from  another  man,  and  then  refuses  to  perform 
his  part  of  the  agreement.  That  person  has  broken  his  contract, 
and  is  liable  at  the  suit  of  the  other  party  to  damages  or  to  a  decree 
for  specific  performance,  according  to  the  circumstances  of  the  case. 
Two  men  have  a  dispute  as  to  the  ownership  of  goods,  and  one  of 
them  takes  or  retains  property  which  really  belongs  to  the  other. 
Such  an  act  does  not  amount  to  a  crime;  but  the  person  who  has 
done  so  is  guilty  of  a  tort,  and  is  liable  to  damages.  A  man  fraudu- 
lently and  without  color  of  right  takes  property  which  he  knows 
to  belong  to  another.  He  is  guilty  of  the  crime  of  theft,  and  will 
be  sent  to  prison  probably  with  hard  labor.  But  this  offender 
has  also  by  his  wrongful  act  caused  damage  to  the  owner  of  the 
property;  and  for  this  tort  he  is,  in  addition  to  his  punishment, 
liable  to  make  to  that  owner  compensation. 

Blackstone,  Commentaries,  III,  119-128. 

The  rights  of  persons,  we  may  remember,  were  distributed  into 
absolute  and  relative:  absolute,  w'hich  were  such  as  appertained  and 
belonged  to  private  men,  considered  merely  as  individuals,  or  single 
persons;  and  relative,  which  were  incident  to  them  as  members  of 
society  and  connected  to  each  other  by  various  ties  and  relations. 
And  the  absolute  rights  of  each  individual  were  defined  to  be  the 
right  of  personal  security,  the  right  of  personal  liberty,  and 
the  right  of  private  property,  so  that  the  wrongs  or  injuries 
affecting  them  must  consequently  be  of  a  corresponding  nature. 


484  ACTS 

I.  As  to  injuries  which  affect  the  personal  security  of  individuals, 
they  are  either  injuries  against  their  Hves,  their  hmbs,  their  bodies, 
their  health,  or  their  reputations. 

1.  With  regard  to  the  first  subdivision,  or  injuries  affecting  the 
life  of  man,  they  do  not  fall  under  our  present  contemplation ;  being 
one  of  the  most  atrocious  species  of  crimes,  the  subject  of  the  next 
book  of  our  commentaries. 

2,  3.  The  two  next  species  of  injuries,  affecting  the  limbs  or 
bodies  of  individuals,  I  shall  consider  in  one  and  the  same  view.  And, 
these  may  be  committed,  1.  By  threats  and  menaces  of  bodily  hurt, 
through  fear  of  which  a  man's  business  is  interrupted.  A  menace 
alone,  without  a  consequent  inconvenience,  makes  not  the  injury: 
but,  to  complete  the  wrong,  there  must  be  both  of  them  together. 
The  remedy  for  this  is  in  pecuniary  damages,  to  be  recovered  by 
action  of  trespass  vi  et  armis;  this  being  an  inchoate,  though  not  an 
absolute,  violence.  2.  By  assault;  which  is  an  attempt  or  offei- 
to  beat  another,  without  touching  him ;  as  if  one  lifts  up  his  cane, 
or  his  fist,  in  a  threatening  manner  at  another;  or  strikes  at  him  but 
misses  him ;  this  is  an  assault,  insultus,  which  Finch  describes  to  be 
"an  unlawful  setting  upon  one's  person."  This  also  is  an  inchoate 
violence,  amounting  considerably  higher  than  bare  threats ;  and  there- 
fore, though  no  actual  suffering  is  proved,  yet  the  party  injured 
may  have  redress  by  action  of  trespass  vi  et  armis;  wherein  he  shall 
recover  damages  as  a  compensation  for  the  injury.  3.  By  battery; 
which  is  the  unlawful  beating  of  another.  The  least  touching  of 
another's  person  wilfully,  or  in  anger,  is  a  battery;  for  the  law 
cannot  draw  the  line  between  different  degrees  of  violence,  and 
therefore  totally  prohibits  the  first  and  lowest  stage  of  it;  every 
man's  person  being  sacred,  and  no  other  having  a  right  to  meddle 
with  it  in  any  the  slightest  manner.  And  therefore  upon  a  similar 
principle  the  Cornelian  law  de  injuriis  prohibited  pulsation  as  well 
as  verberation ;  distinguishing  verberation,  which  was  accompanied 
with  pain,  from  pulsation,  which  was  attended  with  none.  But 
battery  is,  in  some  cases,  justifiable  or  lawful;  as  where  one  who 
hath  authority,  a  parent,  or  master,  gives  moderate  correction 
to  his  child,  his  scholar,  or  his  apprentice.  So  also  on  the  principle 
of  self-defense:  for  if  one  strikes  me  first,  or  even  only  assaults  me, 
I  may  strike  in  my  own  defense;  and,  if  sued  for  it,  may  plead 
son  assault  demesne,  or  that  it  was  the  plaintiff's  own  original  assault 
that  occasioned  it.  So  likewise  in  defense  of  my  goods  or  possession, 
if  a  man  endeavors  to  deprive  me  of  them  I  may  justify  laying  hands 


TORTS  485 

upon  him  to  prevent  him ;  and  in  case  he  persists  with  violence,  I 
may  proceed  to  beat  him  away.  Thus  too  in  the  exercise  of  an  office, 
as  that  of  church-warden  or  beadle,  a  man  may  lay  hands  upon 
another  to  turn  him  out  of  church,  and  prevent  his  disturbing  the 
congregation.  And  if  sued  for  this  or  the  like  battery,  he  may  set 
forth  the  whole  case,  and  plead  that  he  laid  hands  upon  him  gently, 
moUiter  manus  imposuit,  for  this  purpose.  On  account  of  these 
causes  of  justification,  battery  is  defined  to  be  the  unlawful  beating 
of  another;  for  which  the  remedy  is,  as  for  assault,  by  action  of 
trespass  vi  et  armis;  wherein  the  jury  will  give  adequate  damages. 
4.  By  wounding;  which  consists  in  giving  another  some  dangerous 
hurt,  and  is  only  an  aggravated  species  of  battery.  5.  By  mayhem, 
which  is  an  injury  still  more  atrocious  and  consists  in  violently  de- 
priving another  of  the  use  of  a  member  proper  for  his  defense  in 
fight.  This  is  a  battery  attended  with  this  aggravating  circum- 
stance that  thereby  the  party  injured  is  forever  disabled  from 
making  so  good  a  defense  against  future  external  injuries,  as  he 
otherwise  might  have  done.  Among  these  defensive  members 
are  reckoned  not  only  arms  and  legs  but  a  finger,  an  eye,  and  a 
foretooth,  and  also  some  others.  But  the  loss  of  one  of  the  jaw- 
teeth,  the  ear,  or  the  nose  is  no  mayhem  at  common  law,  as  they 
can  be  of  no  use  in  fighting.  The  same  remedial  action  of  trespass 
vi  et  armis  lies  also  to  recover  damages  for  this  injury,  an  injury 
which  (when  wilful)  no  motive  can  justify  but  necessary  self- 
preservation.  .  .  .  And  here  I  must  observe  that  for  these  four 
last  injuries,  assault,  battery,  wounding,  and  mayhem,  an  indict- 
ment may  be  brought  as  well  as  an  action,  and  frequently  both  are 
accordingly  prosecuted,  the  one  at  the  suit  of  the  crown  for  the  crime 
against  the  public,  the  other  at  the  suit  of  the  party  injured,  to  make 
him  a  reparation  in  damages. 

4.  Injuries  affecting  a  man's  health  are  where,  by  any  unwhole- 
some practices  of  another,  a  man  sustains  any  apparent  damage  in 
his  vigor  or  constitution.  As  by  selling  him  bad  provisions  or 
wine;  by  the  exercise  of  a  noisome  trade,  which  infects  the  air  in 
his  neighborhood;  or  by  the  neglect  or  unskilful  management  of 
his  physician,  surgeon,  or  apothecary.  For  it  hath  been  solemnly 
resolved,  that  mala  praxis  is  a  great  misdemeanor  and  offense  at 
common  law,  whether  it  be  for  curiosity  and  experiment,  or  by 
neglect;  because  it  breaks  the  trust  which  the  party  had  placed 
in  his  physician,  and  tends  to  the  patient's  destruction.  Thus, 
also,  in  the  civil   law,   neglect   or  want  of  skill  in  physicians  or 


486  ACTS 

surgeons,  "culpae  adnumerantiir ,  veluti  si  medicus  curationem  dereli- 
querit,  male  quempian  secuerit,  aiit  perperam  ei  medicamentum  dederil. ' ' 
These  are  wrongs  or  injuries  unaccompanied  by  force,  for  which  there 
is  a  remedy  in  damages  by  a  special  action  of  trespass  upon  the  case. 
This  action  of  trespass,  or  transgression,  on  the  case,  is  a  universal 
remedy,  given  for  all  personal  wrongs  and  injuries  without  force; 
so  called  because  the  plaintiff's  whole  case  or  cause  of  complaint 
is  set  forth  at  length  in  the  original  writ.     For  though  in  general 
there    are  methods    prescribed,    and    forms   of   actions  previously 
settled,  for  redressing  those  wrongs,  which  most  usually  occur,  and 
in  which  the  very  act  itself  is  immediately  prejudicial  or  injurious 
to  the  plaintiff's  person  or  property,  battery,  non-payment  of  debts, 
detaining  one's  goods,  or  the  like;    yet  where  any  special  conse- 
quential damage  arises,  which  could  not  be  foreseen  and  provided 
for  in  the  ordinary  course  of  justice,  the  party  injured  is  allowed, 
both  by  common  law  and  the  statute  of  Westm.  2,  c.  24,  to  bring  a 
special  action  on  his  own  case,  by  a  writ  formed  according  to  the 
peculiar    circumstances    of    his    own    particular    grievance.     For 
wherever  the  common  law  gives  a  right  or  prohibits  an  injury,  it 
also  gives  a  remedy  by  action;    and  therefore,  wherever  a  new 
injury  is  done,  a  new  method  of  remedy  must  be  pursued.     And  it 
is  a  settled  distinction,  that  where  an  act  is  done  which  is  in  itself 
an   immediate  injury   to  another's  person  or  property,   there   the 
remedy  is  usually  by  an  action  of  trespass  vi  et  armis;  but  where 
there  is  no  act  done,  but  only  a  culpable  omission,  or  where  the 
act  is  not  immediately  injurious,  but    only    by  consequence   and 
collaterally;   there  no  action  of  trespass  vi  et  armis  will  lie,  but  an 
action  on  the  special   case  for  the  damages  consequent  on  such 
omission  or  act. 

5.  Lastly;  injuries  affecting  a  man's  reputation  or  good  name 
are,  first,  by  malicious,  scandalous,  and  slanderous  words,  tending 
to  his  damage  and  derogation.  As  if  a  man  maliciously  and 
falsely  utter  any  slander  or  false  tale  of  another;  which  may  either 
endanger  him  in  law,  by  impeaching  him  of  some  heinous  crime,  as 
to  say  that  a  man  hath  poisoned  another,  or  is  perjured;  or  which 
may  exclude  him  from  society,  as  to  charge  him  with  having  an 
infectious  disease,  or  which  may  impair  or  hurt  his  trade  or  liveli- 
hood, as  to  call  a  tradesman  a  bankrupt,  a  physician  a  quack,  or  a 
lawyer  a  knave.  Words  spoken  in  derogation  of  a  peer,  a  judge, 
or  other  great  officer  of  the  realm,  which  are  called  scandalum  mag- 
natum,  are  held  to  be  still  more  heinous:  and  though  they  be  such 


TORTS  487 

as  would  not  be  actionable  in  the  case  of  a  common  person,  yet 
when  spoken  in  disgrace  of  such  high  and  respectable  characters, 
they  amount  to  an  atrocious  injury:  which  is  redressed  by  an  action 
on  the  case  founded  on  many  ancient  statutes,  as  well  on  behalf  of 
the  crown,  to  inflict  the  punishment  of  imprisonment  on  the  slan- 
derer, as  on  behalf  of  the  party,  to  recover  damages  for  the  injury 
sustained.  Words  also  tending  to  scandalize  a  magistrate,  or  person 
in  a  public  trust,  are  reputed  more  highly  injurious  than  when 
spoken  of  a  private  man.  It  is  said,  that  formerly  no  actions  were 
brought  for  words,  unless  the  slander  was  such  as  (if  true)  would 
endanger  the  life  of  the  object  of  it.  But,  too  great  encouragenent 
being  given  by  this  lenity  to  false  and  malicious  slanderers,  it  is 
now  held  that  for  scandalous  words  of  the  several  species  before 
mentioned  (that  may  endanger  a  man  by  subjecting  him  to  the 
penalties  of  the  law,  may  exclude  him  from  society,  may  impair 
his  trade,  or  may  affect  a  peer  of  the  realm,  a  magistrate,  or  one  in 
public  trust),  an  action  on  the  case  may  be  had,  without  proving 
any  particular  damage  to  have  happened,  but  merely  upon  the 
probability  that  it  might  happen.  But  with  regard  to  words  that 
do  not  thus  apparently,  and  upon  the  face  of  them,  import  such 
defamation  as  will  of  course  be  injurious,  it  is  necessary  that  the 
plaintiff  should  aver  some  particular  damage  to  have  happened; 
which  is  called  laying  his  action  with  a  per  quod.  As  if  I  say  that 
such  a  clerg>'man  is  a  bastard,  he  cannot  for  this  bring  any  action 
against  me,  unless  he  can  show  some  special  loss  by  it ;  in  which  case 
he  may  bring  his  action  against  me  for  saying  he  was  a  bastard,  per 
quod  he  lost  the  presentation  to  such  a  living.  In  like  manner,  to 
slander  another  mans  title,  by  spreading  such  injurious  reports  as, 
if  true,  would  deprive  him  of  his  estate,  (as  to  call  the  issue  in  tail, 
or  one  who  hath  land  by  descent,  a  bastard)  is  actionable,  provided 
any  special  damage  accrues  to  the  proprietor  thereby;  as  if  he  loses 
an  opportunity  of  seUing  the  land.  But  mere  scurrility,  or  oppro- 
brious words,  which  neither  in  themselves  import,  nor  are  in  fact 
attended  with,  any  injurious  effects  will  not  support  an  action.  So 
scandals,  which  concern  matters  merely  spiritual,  as  to  call  a  man 
heretic  or  adulterer,  are  cognizable  only  in  the  ecclesiastical  court; 
unless  any  temporal  damage  ensues,  which  may  be  a  foundation 
for  a  per  quod.  Words  of  heat  and  passion,  as  to  call  a  man  a  rogue 
and  rascal,  if  productive  of  no  ill  consequence,  and  not  of  any  of  the 
dangerous  species  before  mentioned,  are  not  actionable;  neither  are 
words  spoken  in  a  friendly  manner,  as  by  way  of  advice,  admonition, 


488  ACTS 

or  concern,  without  any  tincture  or  circumstance  of  ill  will: 
for,  in  both  these  cases,  they  are  not  maliciously  spoken,  which  is 
part  of  the  definition  of  slander.  Neither  (as  was  formerly  hinted) 
are  any  reflecting  words  made  use  of  in  legal  proceedings,  and  perti- 
nent to  the  cause  in  hand,  a  sufficient  cause  of  action  for  slander. 
Also,  if  the  defendant  be  able  to  justify,  and  prove  the  words  to  be 
true,  no  action  will  lie,  even  though  special  damage  hath  ensued: 
for  then  it  is  no  slander  or  false  tale.  As  if  I  can  prove  the  trades- 
man a  bankrupt,  the  physician  a  quack,  the  lawyer  a  knave,  and  the 
divine  a  heretic,  this  will  destroy  their  respective  actions ;  for  though 
there  may  be  damage  sufficient  accruing  from  it,  yet,  if  the  fact  be 
true,  it  is  damnum  absque  injuria;  and  where  there  is  no  injury  the 
law  gives  no  remedy.  And  this  is  agreeable  to  the  reasoning  of  the 
civil  law :  ''eum  qui  nocentem  infamat,  ?ion  est  aequum  et  boniim  oh  earn 
rem  condemnari;  delicta  enim  nocentium  nota  esse  oportet  et  expedite' 

A  second  way  of  affecting  a  man's  reputation  is  by  printed  or 
w^ritten  libels,  pictures,  signs,  and  the  like;  which  set  him  in  an 
odious  or  ridiculous  light,  and  thereby  diminish  his  reputation.  With 
regard  to  libels  in  general,  there  are,  as  in  many  other  cases,  two 
remedies;  one  by  indictment,  and  the  other  by  action.  The  former 
for  the  public  offense ;  for  every  libel  has  a  tendency  to  the  breach 
of  the  peace,  by  provoking  the  person  libelled  to  break  it;  which 
offense  is  the  same  (in  point  of  law)  whether  the  matter  contained 
be  true  or  false ;  and  therefore  the  defendant  on  an  indictment  for 
publishing  a  libel,  is  not  allowed  to  allege  the  truth  of  it  by  way  of 
justification.  But  in  the  remedy  by  action  on  the  case,  which  is  to 
repair  the  party  in  damages  for  the  injury  done  him,  the  defendant 
may,  as  for  words  spoken,  justify  the  truth  of  the  facts,  and  show 
that  the  plaintiff  has  received  no  injury  at  all.  What  was  said 
with  regard  to  words  spoken  will  also  hold  in  every  particular  with 
regard  to  libels  by  writing  or  printing,  and  the  civil  actions  con- 
sequent thereupon;  but  as  to  signs  or  pictures,  it  seems  necessary 
always  to  show,  by  proper  innuendoes  and  averments  of  the  defend- 
ant's meaning,  the  import  and  application  of  the  scandal,  and 
that  some  special  damage  has  followed ;  otherwise  it  cannot 
appear  that  such  libel  by  picture  was  understood  to  be  levelled 
at  the  plaintiff,  or  that  it  was  attended  with  any  actionable  con- 
sequences. 

A  third  way  of  destroying  or  injuring  a  man's  reputation  is  by 
preferring  malicious  indictments  or  prosecutions  against  him; 
which,  under  the  mask  of  justice  and  public  spirit,  are  sometimes 


TORTS  489 

made  the  engines  of  private  spite  and  enmity.  For  this,  however, 
the  hiw  has  gi\en  a  very  adequate  remedy  in  damages,  either  by  an 
action  of  conspiracy,  which  cannot  be  brought  but  against  two  at 
the  least;  or,  which  is  the  more  usual  way,  by  a  special  action  on 
the  case  for  a  false  and  malicious  prosecution.  In  order  to  carry 
on  the  former,  (which  gi\-es  a  recompense  for  the  danger  to  which 
the  party  has  been  exposed,)  it  is  necessary  that  the  plaintiff  should 
ol)tain  a  copy  of  the  record  of  his  indictm.ent  and  acquittal;  but, 
in  prosecutions  for  felony,  it  is  usual  to  deny  a  copy  of  the  indict- 
ment, where  the»"e  is  any  the  least  probable  cause  to  found  such 
prosecution  upon.  For  it  would  be  a  very  great  discouragement  to 
the  public  justice  of  the  kingdom,  if  prosecutors,  who  had  a  tolerable 
ground  of  suspicion,  were  liable  to  be  sued  at  law  whenever  their 
indictments  miscarried.  But  an  action  on  the  case  for  a  malicious 
prosecution  may  be  founded  upon  an  indictment  whereon  no 
acquittal  can  be  had;  as  if  it  be  rejected  by  the  grand  jury,  or  be 
coram  7wii  judice,  or  be  insufificiently  drawn.  For  it  is  not  the 
danger  of  the  plaintiff,  but  the  scandal,  vexation,  and  expense, 
upon  which  this  action  is  founded.  However,  any  probable  cause 
for  preferring  it  is  sufficient  to  justify  the  defendant. 

II.  We  are  next  to  consider  the  violation  of  the  right  of  per- 
sonal liberty.  This  is  effected  by  the  injury  of  false  imprisonment, 
for  which  the  law  has  not  only  decreed  a  punishment,  as  a  heinous 
public  crime,  but  has  also  given  a  private  reparation  to  the  party; 
as  well  by  removing  the  actual  confinement  for  the  present,  as, 
after  it  is  o\-er,  by  subjecting  the  wrong-doer  to  a  civil  action,  on 
account  of  the  damage  sustained  by  the  loss  of  time  and  liberty.     ■ 

To  constitute  the  injury  of  false  imprisonment  there  are  two 
points  requisite:  1.  The  detention  of  the  person;  and,  2.  The 
unlawfulness  of  such  detention.  Every  confinement  of  the  person 
is  an  imprisonment,  whether  it  be  in  a  common  prison,  or  in  a 
pri\ate  house,  or  in  the  stocks,  or  even  by  forcibly  detaining  one 
in  the  public  streets.  Unlawful,  or  false,  imprisonment  consists  in 
such  confinement  or  detention  without  sufficient  authority:  which 
authority  may  arise  either  from  some  process  from  the  courts  of 
justice,  or  from  some  warrant  from  a  legal  officer  having  power  to 
commit,  under  his  hand  and  seal,  and  expressing  the  cause  of  such 
commitment;  or  from  some  other  special  cause  warranted,  for  the 
necessity  of  the  thing,  either  by  common  law,  or  act  of  parliament; 
such  as  the  arresting  of  a  felon  by  a  private  person  without  warrant, 
the  impressing  of  mariners  for  the  public  service,  or  the  apprehending 


490  ACTS 

of  wagoners  for  misbehavior  in  the  public  highways.  False  im- 
prisonment also  may  arise  b^^  executing  a  lawful  warrant  or  process 
at  an  unlawful  time,  as  on  a  Sunday;  for  the  statute  hath  declared 
that  such  service  or  process  shall  be  \^oid. 

Blackstone,  Commentaries,  III,  165. 

Besides  the  special  action  on  the  case,  there  is  also  a  peculiar 
remedy,  entitled  an  action  of  deceit;  to  give  damages  in  some 
particular  cases  of  fraud ;  and  principally  where  one  man  does  any- 
thing in  the  name  of  another,  by  which  he  is  deceived  or  injured; 
as  if  one  brings  an  action  in  another's  costs;  or  where  one  obtains 
or  suffers  a  fraudulent  recovery  of  lands,  tenements,  or  chattels, 
to  the  prejudice  of  him  that  hath  right.  As  when,  by  collusion, 
the  attorney  of  the  tenant  makes  default  in  a  real  action,  or 
where  the  sheriff  returns  that  the  tenant  was  summoned  when 
he  was  not  so,  and  in  either  case  he  loses  the  land,  the  writ  of  deceit 
lies  against  the  demandant,  and  also  the  attorney  or  the  sheriff 
and  his  officers;  to  annul  the  former  proceedings,  and  recover  back 
the  land.  It  also  lies  in  the  cases  of  warranty  before  mentioned, 
and  other  personal  injuries  committed  contrary  to  good  faith  and 
honesty.  But  an  action  on  the  case-,  for  damages,  in  nature  of  a 
writ  of  deceit,  is  more  usually  brought  upon  these  occasions. 

Blackstone,  Commentaries,  III,  139-143. 

We  are  next  to  contemplate  those  which  affect  their  relative  rights; 
or  such  as  are  incident  to  persons  considered  as  members  of  society, 
and  connected  to  each  other  by  various  ties  and  relations;  and,  in 
particular,  such  injuries  as  may  be  done  to  persons  under  the  four 
following  relations:  husband  and  wife,  parent  and  child,  guardian 
and  ward,  master  and  servant. 

I.  Injuries  that  may  be  offered  to  a  person,  considered  as  a 
husband,  are  principally  three:  abduction,  or  taking  away  a  man's 
wafe;  adultery,  or  criminal  conversation  with  her;  and  beating  or 
otherwise  abusing  her.  1.  As  to  the  first  sort,  abduction,  or  tak- 
ing her  away,  this  may  either  be  by  fraud  and  persuasion,  or  open 
violence:  though  the  law  in  both  cases  supposes  force  and  con- 
straint, the  wife  having  no  power  to  consent;  and  therefore  gives 
a  remedy  by  writ  of  ravishment,  or  action  of  trespass  vi  et  armis, 
de  uxore  rapta  et  abdiicta.  This  action  lay  at  the  common  law; 
and  thereby  the  husband  shall  recover,  not  the  possession  of  his 
wife,  but  damages  for  taking  her  away.  .  •  .     And  the  husband  is 


TORTS     •  491 

also  entitled  to  recover  damages  in  an  action  on  the  case  against 
such  as  persuade  and  entice  the  wife  to  live  separate  from  him 
without  a  sufficient  cause.  The  old  law  was  so  strict  in  this  point, 
that  if  one's  wife  missed  her  way  upon  the  road,  it  was  not  lawful 
for  another  man  to  take  her  into  his  house,  unless  she  was  benighted 
and  in  danger  of  being  lost  or  drowned ;  but  a  stranger  might  carry 
her  behind  him  on  horseback  to  market,  to  a  justice  of  the  peace, 
for  a  warrant  against  her  husband,  or  to  the  spiritual  court  to  sue 
for  a  d'vorce.  2.  Adultery,  or  criminal  conversation  with  a  man's 
wife,  though  it  is,  as  a  public  crime,  left  by  our  laws  to  the  coercion 
of  the  spiritual  courts;  yet,  considered  as  a  civil  injury  (and  surely 
there  can  be  no  greater)  the  law  gives  a  satisfaction  to  the  hus- 
band for  it  by  action  of  trespass  vi  et  armis  against  the  adulterer, 
wherein  the  damages  recovered  are  usually  very  large  and  exemplary. 
But  these  are  properly  increased  and  diminished  by  circumstances; 
as  the  rank  and  fortune  of  the  plaintiff  and  defendant;  the  relation 
or  connection  between  them;  the  seduction  or  otherwise  of  the 
wife,  founded  on  her  previous  behavior  and  character;  and  the 
husl)and's  obligation,  by  settlement  or  otherwise,  to  provide  for 
those  children,  which  he  cannot  but  suspect  to  be  spurious.  .  .  . 
The  third  injury  is  that  of  beating  a  man's  wife,  or  otherwise  ill 
using  her;  for  which,  if  it  be  a  common  assault,  battery,  or  imprison- 
ment, the  law  gives  the  usual  remedy  to  recover  damages,  by 
action  of  trespass  vi  et  armis,  which  must  be  brought  in  the  names 
of  the  husband  and  wife  jointly;  but  if  the  beating  or  other  mal- 
treatment be  very  enormous,  so  that  thereby  the  husband  is 
deprived  for  any  time  of  the  company  and  assistance  of  his  wife, 
the  law  then  gives  him  a  separate  remedy  by  an  action  of  trespass, 
in  nature  of  an  action  upon  the  case,  for  this  ill  usage,  per  quod 
consortium  amisit;  in  which  he  shall  recover  a  satisfaction  in 
damages. 

II.  Injuries  that  may  be  offered  to  a  person  considered  in  the 
relation  of  a  parent  were  likewise  of  two  kinds:  1.  Abduction,  or 
taking  his  children  away;  and,  2.  Marrying  his  son  and  heir 
without  the  father's  consent,  whereby  during  the  continuance  of 
the  military  tenures  he  lost  the  value  of  his  marriage.  But  this 
last  injury  is  now  ceased,  together  with  the  right  upon  which  it  is 
grounded;  for,  the  father  being  no  longer  entitled  to  the  value 
of  the  marriage,  the  marrying  his  heir  does  him  no  sort  of  injury 
for  which  a  civil  action  will  lie.  As  to  the  other,  of  abduction,  or 
taking  away  the  children  from  the  father,  that  is  also  a  matter  of 


492  ACTS 

doubt  whether  it  be  a  civil  injury  or  no;  for,  before  the  abolition 
of  the  tenure  in  chivalry,  it  was  equally  a  doubt  whether  an  action 
would  lie  for  taking  and  carrying  away  any  other  child  besides  the 
heir;  some  holding  that  it  would  not,  upon  the  supposition  that 
the  only  ground  or  cause  of  action  was  losing  the  value  of  the 
heir's  marriage;  and  others  holding  that  an  action  would  lie  for 
taking  away  any  of  the  children,  for  that  the  parent  hath  an  inter- 
est in  them  all,  to  provide  for  their  education.  If,  therefore, 
before  the  abolition  of  these  tenures,  it  was  an  injury  to  the  father 
to  take  away  the  rest  of  his  children,  as  well  as  his  heir,  (as  I  am 
inclined  to  think  it  was),  it  still  remains  an  injury,  and  is  remediable 
by  writ  of  ravishment  or  action  of  trespass  vi  et  armis,  de  filio,  vel 
filia,  rapto  vel  ahducto;  in  the  same  manner  as  the  husband  may 
have  it  on  account  of  the  abduction  of  his  wife. 

III.  Of  a  similar  nature  to  the  last  is  the  relation  of  guardian 
and  ward;  and  the  like  actions  mutatis  mutandis,  as  are  given  to 
fathers,  the  guardian  also  has  for  recovery  of  damages,  when  his 
ward  is  stolen  or  ravished  away  from  him.  And  though  guardian- 
ship in  chivalry  is  now  totally  abolished,  which  was  the  only  bene- 
ficial kind  of  guardianship  to  the  guardian,  yet  the  guardian  in 
socage  was  always  and  is  still  entitled  to  an  action  of  ravishment, 
if  his  ward  or  pupil  be  taken  from  him;  but  then  he  must  account 
to  his  pupil  for  the  damages  which  he  so  recovers.  And,  as  a 
guardian  in  socage  was  also  entitled  at  common  law  to  a  writ  of 
right  of  ward,  de  custodia  terrae  et  haeredis,  in  order  to  recover  the 
possession  and  custody  of  the  infant,  so  I  apprehend  that  he  is 
still  entitled  to  sue  out  this  antiquated  writ.  But  a  more  speedy 
and  summary  method  of  redressing  all  complaints  relative  to  wards 
and  guardians  hath  of  late  obtained  by  an  application  to  the  court 
of  chancery;  which  is  the  supreme  guardian,  and  has  the  superin- 
tendent jurisdiction,  of  all  the  infants  in  the  kingdom.  And  it  is 
expressly  provided  by  statute  12  Car.  II.  c.  24  that  testamentary 
guardians  may  maintain  an  action  of  ravishment  or  trespass,  for 
recovery  of  any  of  their  wards,  and  also  for  damages  to  be  applied 
to  the  use  and  benefit  of  the  infants. 

IV.  To  the  relation  between  master  and  servant,  and  the  rights 
accruing  therefrom,  there  are  two  species  of  injuries  incident. 
The  one  is,  retaining  a  man's  hired  servant  before  his  time  is  expired ; 
the  other  is,  beating  or  confining  him  in  such  a  manner  that  he  is 
not  able  to  perform  his  work.  As  to  the  first,  the  retaining  another 
person's  servant  during  the  time  he  has  agreed  to  serve  his  present 


TORTS  493 

master;  this,  as  it  is  an  ungentlemanlike,  so  it  is  also  an  illegal,  act. 
For  every  master  has  by  his  contract  purchased  for  a  valuable 
consideration  the  service  of  his  domestics  for  a  limited  time:  the 
in\-eigling  or  hiring  his  servant,  which  induces  a  breach  of  this  con- 
tract, is  therefore  an  injury  to  the  master;  and  for  that  injury 
the  law  has  gi\en  him  a  remedy  by  a  special  action  on  the  case 
and  he  may  also  ha\'e  an  action  against  the  servant  for  the  non- 
performance of  his  agreement.  But,  if  the  new  master  was  not 
apprised  of  the  former  contract,  no  action  lies  against  him,  unless 
he  refuses  to  restore  the  servant,  upon  demand.  The  other  point 
of  injury  is  that  of  beating,  confining,  or  disabling  a  man's  ser- 
vant, which  depends  upon  the  same  principle  as  the  last;  viz., 
the  property  which  the  master  has  by  his  contract  acquired  in  the 
labor  of  the  servant.  In  this  case,  besides  the  remedy  of  an  action 
of  battery  or  imprisonment,  which  the  servant  himself  as  an  indi- 
vidual may  have  against  the  aggressor,  the  master  also,  as  a  recom- 
pense for  his  immediate  loss,  may  maintain  an  action  of  trespass 
vi  et  arm  is;  in  which  he  must  allege  and  prove  the  special  damage 
he  has  sustained  by  the  beating  of  his  servant,  per  quod  servitium 
amisit;  and  then  the  jury  will  make  him  a  proportionable  pecu- 
niary satisfaction.  A  similar  practice  to  which  we  find  also  to  have 
obtained  among  the  Athenians;  where  masters  were  entitled  to  an 
action  against  such  as  beat  or  ill  treated  their  servants. 

We  may  observe  that  in  these  relative  injuries,  notice  is  only 
taken  of  the  wrong  done  to  the  superior  of  the  parties  related,  by 
the  breach  and  dissolution  of  either  the  relation  itself,  or  at  least 
the  advantages  accruing  therefrom;  while  the  loss  of  the  inferior 
by  such  injuries  is  totally  unregarded.  One  reason  for  which  may 
be  this:  that  the  inferior  hath  no  kind  of  property  in  the  company, 
care,  or  assistance  of  the  superior,  as  the  superior  is  held  to  have  in 
those  of  the  inferior;  and  therefore  the  inferior  can  suffer  no  loss 
or  injury.  The  wife  cannot  recover  damages  for  beating  her  hus- 
band, for  she  hath  no  separate  interest  in  anything  during  her 
coverture.  The  child  hath  no  property  in  his  father  or  guardian, 
as  they  have  in  him,  for  the  sake  of  giving  him  education  and  nur- 
ture. Yet  the  wife  or  the. child,  if  the  husband  or  parent  be  slain, 
have  a  peculiar  species  of  criminal  prosecution  allowed  them,  in 
the  nature  of  a  civil  satisfaction;  which  is  called  an  appeal,  and 
which  will  be  considered  in  the  next  book.  And  so  the  servant, 
whose  master  is  disabled  docs  not  thereby  lose  his  maintenance  or 
wages.     He  had  no  property  in  his  master;    and  if  he  receives  his 


494  ACTS 

part  of  the  stipulated  contract,  he  suffers  no  injury,  and  is  there- 
fore entitled  to  no  action,  for  any  battery  or  imprisonment  which 
such  mastei'  may  happen  to  endure. 

Warren  and  Brandeis,  The  Right  to  Privacy,  4  Harvard  Law- 
Rev.  193,  193-196,  206-207. 

That  the  individual  shall  have  full  protection  in  person  and  in 
property  is  a  principle  as  old  as  the  common  law;  but  it  has  been 
found  necessary  from  time  to  time  to  define  anew  the  exact  nature 
and  extent  of  such  protection.  Political,  social,  and  economic 
changes  entail  the  recognition  of  new  rights,  and  the  common  law, 
in  its  eternal  youth,  grows  to  meet  the  demands  of  society.  Thus, 
in  very  early  times,  the  law  gave  a  remedy  only  for  physical  inter- 
ference with  life  and  property,  for  trespasses  vi  et  armis.  Then  the 
"right  to  life"  served  only  to  protect  the  subject  from  battery  in  its 
various  forms;  liberty  meant  freedom  from  actual  restraint;  and 
the  right  to  property  secured  to  the  individual  his  lands  and  his 
cattle.  Later,  there  came  a  recognition  of  man's  spiritual  nature, 
of  his  feelings  and  his  intellect.  Gradually,  the  scope  of  these  legal 
rights  broadened ;  and  now  the  right  to  life  has  come  to  mean  the 
right  to  enjoy  life, —  the  right  to  be  let  alone;  the  right  to  liberty 
secures  the  exercise  of  extensive  civil  privileges;  and  the  term 
"property"  has  grown  to  comprise  every  form  of  possession  — 
intangible,  as  well  as  tangible. 

Thus,  with  the  recognition  of  the  legal  value  of  sensations,  the 
protection  against  actual  bodily  injury  was  extended  to  prohibit 
mere  attempts  to  do  such  injury;  that  is,  the  putting  another  in 
fear  of  such  injury.  From  the  action  of  battery  grew  that  of  as- 
sault. Much  later  there  came  a  qualified  protection  of  the  individual ' 
against  offensive  noises  and  odors,  against  dust  and  smoke,  and 
excessive  vibration.  The  law  of  nuisance  was  developed.  So 
regard  for  human  emotions  soon  extended  the  scope  of  personal 
immunity  beyond  the  body  of  the  individual.  His  reputation, 
the  standing  among  his  fellow- men,  was  considered,  and  the  law  of 
slander  and  libel  arose.  Man's  family  relations  became  a  part  of  the 
legal  conception  of  his  life,  and  the  alienation  of  a  wife's  affections 
was  held  remediable.  Occasionally,  the  law  halted, — as  in  its 
refusal  to  recognize  the  intrusion  by  seduction  upon  the  honor 
of  the  family.  But  even  here  the  demands  of  society  were  met.  A 
mean  fiction,  the  action  per  quod  servitium  amisit,  was  resorted  to, 
and  by  allowing  damages  for  injury  to  the  parents'  feelings,  an 


TORTS  495 

adequate  remedy  was  ordinarily  afforded.  Similar  to  the  expansion 
of  the  right  to  life  was  the  growth  of  the  legal  conception  of  property. 
From  corporeal  property  arose  the  incorporeal  rights  issuing  out 
of  it;  and  then  there  opened  the  wide  realm  of  intangible  property, 
in  the  products  and  processes  of  the  mind,  as  works  of  literature 
and  art,  goodwill,  trade  secrets,  and  trademarks. 

This  development  of  the  law  was  inevitable.  The  intense  intel- 
lectual and  emotional  life,  and  the  heightening  of  sensations  which 
came  with  the  advance  of  civilization  made  it  clear  to  men  that 
only  a  part  of  the  pain,  pleasure,  and  profit  of  life  lay  in  physical 
things.  Thoughts,  emotions,  and  sensations  demanded  legal  recog- 
nition, and  the  beautiful  capacity  for  growth  which  characterizes 
the  common  law  enabled  the  judges  to  afford  the  requisite  pro- 
tection, without  the  interposition  of  the  legislature. 

Recent  inventions  and  business  methods  call  attention  to  the 
next  step  which  must  be  taken  for  the  protection  of  the  person,  and 
for  securing  to  the  individual  what  Judge  Cooley  calls  the  right 
"to  be  let  alone."  Instantaneous  photographs  and  newspaper  en- 
terprise have  invaded  the  sacred  precincts  of  private  and  domestic 
life;  and  numerous  mechanical  devices  threaten  to  make  good  the 
prediction  that  "what  is  whispered  in  the  closet  shall  be  proclaimed 
from  the  house-tops."  For  years  there  has  been  a  feeling  that  the 
law  must  afford  some  remedy  for  the  unauthorized  circulation  of 
portraits  of  private  persons;  and  the  evil  of  the  invasion  of  privacy 
by  the  newspapers,  long  keenly  felt,  has  been  but  recently  dis- 
cussed by  an  able  writer.  The  alleged  facts  of  a  somewhat 
notorious  case  brought  before  an  inferior  tribunal  in  New  York  a 
few  months  ago,  directly  involved  the  consideration  of  the  right  of 
circulating  portraits;  and  the  question  whether  our  law  will  recog- 
nize and  protect  the  right  to  privacy  in  this  and  in  other  respects 
must  soon  come  before  our  courts  for  consideration. 

Of  the  desirability  —  indeed  of  the  necessity — ^  of  some  such 
protection,  there  can,  it  is  believed,  be  no  doubt.  The  press  is 
over-stepping  in  every  direction  the  obvious  bounds  of  propriety, 
and  of  decency.  Gossip  is  no  longer  the  resource  of  the  idle  and  of 
the  vicious,  but  has  become  a  trade,  which  is  pursued  with  industry 
as  well  as  effrontery.  To  satisfy  a  prurient  taste,  the  details  of  sex- 
ual relations  are  spread  broadcast  in  the  columns  of  the  daily  papers. 
To  occupy  the  indolent,  column  upon  column  is  filled  with  idle 
gossip,  which  can  only  be  procured  by  intrusion  upon  the  domestic 
circle.     The    intensity    and    complexity    of    life,    attendant    upon 


496  ACTS 

advancing  civilization,  have  rendered  necessary  some  retreat  from  the 
world,  and  man,  under  the  refining  influence  of  culture,  has  become 
more  sensitive  to  publicity,  so  that  solitude  and  privacy  have 
become  more  essential  to  the  individual ;  but  modern  enterprise  and 
invention  have,  through  invasions  upon  his  privacy,  subjected  him 
to  mental  pain  and  distress,  far  greater  than  could  be  inflicted  by 
mere  bodily  injury.  Nor  is  the  harm  wrought  by  such  invasions 
confined  to  the  suffering  of  those  who  may  be  made  the  subjects 
of  journalistic  or  other  enterprise.  In  this,  as  in  other  branches  of 
commerce,  the  supply  creates  the  demand.  Each  crop  of  unseemly 
gossip,  thus  harvested,  becomes  the  seed  of  more,  and,  in  direct 
proportion  to  its  circulation,  results  in  a  lowering  of  social  stan- 
dards and  of  morality.  Even  gossip  apparently  harmless,  when 
widely  and  persistently  circulated,  is  potent  for  evil.  It  both  be- 
littles and  perverts.  It  belittles  by  inverting  the  relative  importance 
of  things,  thus  dwarfing  the  thoughts  and  aspirations  of  a  people. 
When  personal  gossip  attains  the  dignity  of  print,  and  crowds  the 
space  available  for  matters  of  real  interest  to  the  community,  what 
wonder  that  the  ignorant  and  thoughtless  mistake  its  relative  im- 
portance. Easy  of  comprehension,  appealing  to  that  weak  side  of 
human  nature  which  is  never  wholly  cast  down  by  the  misfortunes 
and  frailties  of  our  neighbors,  no  one  can  be  surprised  that  it  usurps 
the  place  of  interest  in  brains  capable  of  other  things.  Triviality 
destroys  at  once  robustness  of  thought  and  delicacy  of  feeling. 
No  enthusiasm  can  flourish,  no  generous  impulse  can  survive  under 
its  blighting  influence. 

If  we  are  correct  in  this  conclusion,  the  existing  law  affords  a 
principle  which  may  be  invoked  to  protect  the  privacy  of  the  in- 
dividual from  invasion  either  by  the  too  enterprising  press,  the 
photographer,  or  the  possessor  of  any  other  modern  device  for 
recording  or  reproducing  scenes  or  sounds.  For  the  protection 
afi'orded  is  not  confined  by  the  authorities  to  those  cases  where 
any  particular  medium  or  form  of  expression  has  been  adopted, 
nor  to  products  of  the  intellect.  The  same  protection  is  afforded 
to  emotions  and  sensations  expressed  in  a  musical  composition  or 
other  work  of  art  as  to  a  literary  composition;  and  words  spoken, 
a  pantomime  acted,  a  sonata  performed,  is  no  less  entitled  to  pro- 
tection than  if  each  had  been  reduced  to  writing.  The  circumstance 
that  a  thought  or  emotion  has  been  recorded  in  a  permanent  form 
renders  its  identification  easier,  and  hence  may  be  important  from 


TORTS  497 

the  point  of  view  of  evidence,  but  it  has  no  significance  as  a  matter 
of  substantixe  right.  If,  then,  the  decisions  indicate  a  general 
right  to  privacy  for  thoughts,  emotions,  and  sensations,  these 
should  receive  the  same  protection,  whether  expressed  in  writing, 
or  in  conduct,  in  conversation,  in  attitudes,  or  in  facial  expression. 
It  may  be  urged  that  a  distinction  should  be  taken  between  the 
deliberate  expression  of  thoughts  and  emotions  in  literary  or  artis- 
tic compositions,  and  the  casual  and  often  involuntary  expression 
given  to  them  in  the  ordinary  conduct  of  life.  In  other  words,  it 
may  be  contended  that  the  protection  afforded  is  granted  to  the 
conscious  products  of  labor,  perhaps  as  an  encouragement  to  effort. 
This  contention,  however  plausible,  has,  in  fact,  little  to  recommend 
it.  If  the  amount  of  labor  involved  be  adopted  as  the  test,  we 
might  well  find  that  the  effort  to  conduct  one's  self  properly  in 
business  and  in  domestic  relations  had  been  far  greater  than  that 
involved  in  painting  a  picture  or  writing  a  book;  one  would  find 
that  it  was  far  easier  to  express  lofty  sentiments  in  a  diary  than  in 
the  conduct  of  a  noble  life.  If  the  test  of  deliberateness  of  the  act 
be  adopted,  much  casual  correspondence  which  is  now  accorded 
full  protection  would  be  excluded  from  the  beneficent  operation 
of  existing  rules.  After  the  decisions  denying  the  distinction  at- 
tempted to  be  made  between  those  literary  productions  which  it 
was  intended  to  publish  and  those  which  it  was  not,  all  considerations 
of  the  amount  of  labor  involved,  the  degree  of  deliberation,  the 
value  of  the  product,  and  the  intention  of  publishing  must  be 
abandoned,  and  no  basis  is  discerned  upon  which  the  right  to 
restrain  publication  and  reproduction  of  such  so-called  literary  and 
artistic  works  can  be  rested,  except  the  right  to  privacy,  as  a  part 
of  the  more  general  right  to  the  immunity  of  the  person, —  the  right 
to  one's  personality. 

Blackstone,  Commentaries,  III,  145-154. 

I.  The  rights  of  personal  property  in  possession  are  liable  to 
two  species  of  injuries:  the  amotion  or  deprivation  of  that  posses- 
sion; and  the  abuse  or  damage  of  the  chattels  while  the  possession 
continues  in  the  legal  owner.  The  former,  or  deprivation  of 
possession,  is  also  divisible  into  two  branches;  the  unjust  and  un- 
lawful taking  them  away;  and  the  unjust  detaining  them,  though 
the  original  taking  might  be  lawful. 

1.  And  first  of  an  unlawful  taking.  The  right  of  property  in  all 
external  things  being  solely  accjuired  by  occupancy,  as  has  been 


498  ACTS 

formerly  stated,  and  preserved  and  transferred  by  grants,  deeds, 
and  wills,  which  are  a  continuation  of  that  occupancy;  it  follows, 
as  a  necessary  consequence,  that  when  I  have  once  gained  a  rightful 
possession  of  any  goods  or  chattels,  either  by  a  just  occupancy  or 
by  a  legal  transfer,  whoever  either  by  fraud  or  force  dispossesses 
me  of  them,  is  guilty  of  a  transgression  against  the  law  of  society, 
which  is  a  kind  of  secondary  law  of  nature.  For  there  must  be 
an  ejid  of  all  social  commerce  between  man  and  man,  unless  private 
possessions  be  secured  from  unjust  invasions:  and,  if  an  acquisition 
of  goods  by  either  force  or  fraud  were  allowed  to  be  a  sufficient  title, 
all  property  would  soon  be  confined  to  the  most  strong,  or  the  most 
cunning;  and  the  weak  and  simple-minded  part  of  mankind  (which 
is  by  far  the  most  numerous  division)  could  never  be  secure  of  their 
possessions. 

The  wrongful  taking  of  goods  being  thus  most  clearly  an  injury, 
the  next  consideration  is,  what  remedy  the  law  of  England  has  given 
for  it.  And  this  is,  in  the  first  place,  the  restitution  of  the  goods 
themselves  so  wrongfully  taken,  with  damages  for  the  loss  sustained 
by  such  unjust  invasion;  which  is  effected  by  an  action  of  replevin. 

In  like  manner,  other  remedies  for  other  unlawful  takings  of  a 
man's  goods  consist  only  in  recovering  a  satisfaction  in  damages. 
And  if  a  man  takes  the  goods  of  another  out  of  his  actual  or  virtual 
possession,  without  having  a  lawful  title  so  to  do,  it  is  an  injury, 
which  though  it  doth  not  amount  to  felony  unless  it  be  done  animo 
fiirandi,  is  nevertheless  a  trangression  for  which  an  action  of  trespass 
vi  et  armis  will  lie;  wherein  the  plaintiff  shall  not  recover  the  thing 
itself,  but  only  damages  for  the  loss  of  it.  Or,  if  committed  without 
force,  the  party  may,  at  his  choice,  have  another  remedy  in  damages 
by  action  of  trover  and  conversion 

2.  Deprivation  of  possession  may  also  be  an  unjust  detainer 
of  another's  goods,  though  the  original  taking  was  lawful.  As  if 
I  distrain  another's  cattle  damage-feasant,  and  before  they  are 
impounded,  he  tenders  me  sufficient  amends;  now,  though  the 
original  taking  was  lawful,  my  subsequent  detainment  of  them 
after  tender  of  amends  is  wrongful,  and  he  shall  have  an  action  of 
replevin  against  me  to  recover  them;  in  which  he  shall  recover 
damages  only  for  the  detention  and  not  for  the  caption,  because  the 
original  taking  was  lawful.  Or,  if  I  lend  a  man  a  horse,  and  he 
afterwards  refuses  to  restore  it,  this  injury  consists  in  the  detaining 
and  not  in  the  original  taking,  and  the  regular  method  for  me  to 


TORTS  499 

recover  possesssion  is  by  action  of  detinue.  In  this  action  of  detinue 
it  is  necessary  to  ascertain  the  thing  detained,  in  such  manner  as 
that  it  may  be  specifically  known  and  recovered.  Therefore  it 
cannot  be  brought  for  money,  corn,  or  the  like,  for  that  cannot  be 
known  from  other  money  or  corn,  unless  it  be  in  a  bag  or  a  sack,  for 
then  it  may  be  distinguishably  marked.  In  order  therefore  to 
ground  an  action  of  detinue,  which  is  only  for  the  detaining,  these 
points  are  necessary:  1.  That  the  defendant  came  lawfully  into 
possession  of  the  goods  as  either  by  delivery  to  him,  or  finding  them ; 
2.  That  the  plaintiff  have  a  property;  3.  That  the  goods  them- 
selves be  of  some  value ;  and  4.  That  they  be  ascertained  in  point 
of  identity.  Upon  this  the  jury,  if  they  find  for  the  plaintiff,  assess 
the  respective  values  of  the  several  parcels  detained,  and  also 
damages  for  the  detention.  And  the  judgment  is  conditional ;  that 
the  plaintiff  recover  the  said  goods,  or  (if  they  cannot  be  had)  their 
respective  values,  and  also  the  damages  for  detaining  them.  .  .  . 

The  action  itself  is  of  late  much  disused,  and  has  given  place  to 
the  action  of  trover. 

This  action  of  trover  and  conversion  was  in  its  original  an  action 
of  trespass  upon  the  case,  for  the  recovery  of  damages  against  such 
person  as  had  found  another's  goods  and  refused  to  deliver  them 
on  demand,  but  converted  them  to  his  own  use;  from  which  finding 
and  converting  it  is  called  an  action  of  trover  and  conversion.  The 
freedom  of  this  action  from  wager  of  law,  and  the  less  degree  of 
certainty  requisite  in  describing  the  goods,  gave  it  so  considerable 
an  advantage  over  the  action  of  detinue,  that  by  a  fiction  of  law, 
actions  of  trover  were  at  length  permitted  to  be  brought  against 
any  man  who  had  in  his  possession  by  any  means  whatsoever  the 
personal  goods  of  another,  and  sold  them  or  used  them  without  the 
consent  of  the  owner,  or  refused  to  deliver  them  when  demanded. 
The  injury  lies  in  the  conversion;  for  any  man  may  take  the  goods 
of  another  into  possession,  if  he  finds  them ;  but  no  finder  is  allowed 
to  acquire  a  property  therein,  unless  the  owner  be  forever  unknown : 
and  therefore  he  must  not  convert  them  to  his  own  use,  which  the 
law  presumes  him  to  do  if  he  refuses  them  to  the  owner:  for  which 
reason  such  refusal  also  is,  prima  facie,  sufficient  evidence  of  a 
conversion.  The  fact  of  the  finding  or  trover  is  therefore  now 
totally  immaterial ;  for  the  plaintiff  needs  only  to  suggest  (as  words 
of  form)  that  he  lost  such  goods,  and  that  the  defendant  found 
them;  and  if  he  pro^•es  that  the  goods  are  his  property  and  that 
the  defendant  had  them  in  his  possession,  it  is  sufftcient.     But  a 


500  ACTS 

conversion  must  be  fully  proved ;  and  then  in  this  action  the 
plaintiff  shall  recover  damages,  equal  to  the  value  of  the  thing  con- 
verted, but  not  the  thing  itself;  which  nothing  will  recover  but  an 
action  of  detinue  or  replevin. 

As  to  the  damage  that  may  be  offered  to  things  personal  while  in 
the  possession  of  the  owner,  as  hunting  a  man's  deer,  shooting  his 
dogs,  poisoning  his  cattle,  or  in  any  wise  taking  from  the  value  of  any 
of  his  chattels  or  making  them  in  a  worse  condition  than  before, 
these  are  injuries  too  obvious  to  need  explication.  I  have  only 
therefore  to  mention  the  remedies  given  by  the  law  to  redress  them, 
which  are  in  two  shapes  ;  by  action  of  trespass  vi  et  arniis,  where 
the  act  is  in  itself  immediately  injurious  to  another's  property,  and 
therefore  necessarily  accompanied  with  some  degree  of  force;  and 
by  special  action  on  the  case,  where  the  act  is  in  itself  indifferent, 
and  the  injury  only  consequential,  and  therefore  arising  without  any 
breach  of  the  peace.  In  both  of  which  suits  the  plaintiff  shall 
reco\'er  damages,  in  proportion  to  the  injury  which  he  proves  that 
his  property  has  sustained.  And  it  is  not  material  w'hether  the 
damage  be  done  by  the  defendant  himself,  or  his  servants  by  his 
direction;  for  the  action  will  lie  against  the  master  as  well  as  the 
servant.  And,  if  a  man  keeps  a  dog  or  other  brute  animal,  used 
to  do  mischief,  as  by  worrying  sheep,  or  the  like,  the  owner  must 
answer  for  the  consequences,  if  he  knows  of  such  evil  habit. 

Blackstone,  Commentaries,  III,  208-215. 

In  the  two  preceding  chapters  we  have  considered  such  injuries 
to  real  property  as  consisted  in  an  ouster  or  amotion  of  possession. 
Those  which  remain  to  be  discussed  are  such  as  may  be  offered 
to  a  man's  real  property  without  any  amotion  from  it. 

The  second  species,  therefore,  of  real  injuries,  or  WTongs  that 
affect  a  man's  lands,  tenements,  or  hereditaments,  is  that  of  tres- 
pass. Trespass,  in  its  largest  and  most  extensive  sense,  signifies 
any  transgression  or  offense  against  the  law  of  nature,  of  society, 
or  of  the  country  in  which  we  live,  wlielher  it  relates  to  a  man's 
person  or  his  property.  Therefore,  beating  another  is  a  trespass, 
for  which  (as  we  have  formerly  seen)  an  action  of  trespass  vi  et 
armis  in  assault  and  battery  will  lie;  taking  or  detaining  a  man's 
goods  are  respectively  trespasses,  for  which  an  action  of  trespass 
vi  et  armis,  or  on  the  case  in  trover  and  conversion,  is  given  by  the 
law,  so  also,  non-performance  of,  promises  or  underteikings  is  a 
trespass,  upon  which  an  action  of  trespass  on  the  case  in  assumpsit 


TORTS  501 

is  grounded;  and,  in  general,  any  misfeasance  or  act  of  one  man 
whereby  another  is  injuriously  treated  or  damnified  is  a  trans- 
gression or  trespass  in  its  largest  sense:  for  which  w^e  have  already 
seen  that  whenever  the  act  itself  is  directly  and  immediately 
injurious  to  the  person  or  property  of  another,  and  therefore  neces- 
sarily accompanied  with  some  force,  an  action  of  trespass  vi  et 
armis  will  lie;  but,  if  the  injury  is  only  consequential,  a  special 
action  of  trespass  on  the  case  may  be  brought. 

But,  in  the  limited  and  confined  sense  in  which  we  are  at  present 
to  consider  it,  it  signifies  no  more  than  an  entry  on  another 
man's  ground  without  a  lawful  authority,  and  doing  some  damage, 
however  inconsiderable,  to  his  real  property.  For  the  right  of 
meum  and  tiium,  or  property  in  lands,  being  once  established,  it 
follows  as  a  necessary  consequence  that  this  right  must  be  exclu- 
si\e;  that  is  that  the  owner  may  retain  to  himself  the  sole  use 
and  occupation  of  his  soil :  every  entry,  therefore,  thereon  without 
the  owner's  leave,  and  especially  if  contrary  to  his  express  order, 
is  a  trespass  or  transgression.  The  Roman  laws  seem  to  have  made 
a  direct  prohibition  necessary  in  order  to  constitute  this  injury: 
''qui  aUeniim  fundum  ingreditur,  potest  a  domino,  si  is  praeviderit, 
prohiberi  ne  ingrediatur.''  But  the  law  of  England,  justly  con- 
sidering that  much  inconvenience  may  happen  to  the  owner  before 
he  has  an  opportunity  to  forbid  the  entry,  has  carried  the  point 
much  further,  and  has  treated  every  entry  upon  another's  lands 
(unless  by  the  owner's  leave,  or  in  some  very  particular  cases)  as 
an  injury  or  wrong,  for  satisfaction  of  which  an  action  of  trespass 
will  lie;  but  determines  the  quantum  of  that  satisfaction,  by 
considering  how  far  the  offense  w^as  wilful,  or  inadvertent,  and  by 
estimating  the  value  of  the  actual  damage  sustained. 

Every  unwarrantable  entry  on  another's  soil,  the  law  entitles  a 
trespass  by  breaking  his  close;  the  words  of  the  writ  of  trespass 
commanding  the  defendant  to  show  cause  quare  clausum  querentis 
/regit.  For  every  man's  land  is,  in  the  eye  of  the  law,  enclosed 
and  set  apart  from  his  neighbor's;  and  that  either  by  a  visible  and 
material  fence,  as  one  field  is  divided  from  another  by  a  hedge, 
or  by  an  ideal,  invisible  boundary,  existing  only  in  the  contem- 
plation of  law,  as  when  one  man's  land  adjoins  to  another's  in  the 
same  field.  And  every  such  entry  or  breach  of  a  man's  close  carries 
necessarily  along  with  it  some  damage  or  other;  for,  if  no  other 
special  loss  can  be  assigned,  yet  still  the  w'ords  of  the  writ  itself 
specify  one  general  damage,  viz.,  the  treading  down  and  bruising 
his  herbage. 


502  ACTS 

One  must  have  a  property  (either  absolute  or  temporary)  in  the 
soil,  and  actual  possession  by  entry,  to  be  able  to  maintain  an 
action  of  trespass;  or,  at  least,  it  is  requisite  that  the  party  have  a 
lease  and  possession  of  the  vesture  and  herbage  of  the  land.  Thus, 
if  a  meadow  be  divided  annually  among  the  parishioners  by  lot, 
then,  after  each  person's  several  portion  is  allotted,  they  may  be 
respectively  capable  of  maintaining  an  action  for  the  breach  of 
their  several  closes:  for  they  have  an  exclusive  interest  and  free- 
hold therein  for  the  time.  But  before  entry  and  actual  possession 
one  cannot  maintain  an  action  of  trespass,  though  he  hath  the  free- 
hold in  law.  And  therefore  an  heir  before  entry  cannot  have'  this 
action  against  an  abator;  though  a  disseisee  might  have  it  against 
the  disseisor,  for  the  injury  done  by  the  disseisin  itself,  at  which 
time  the  plaintiff  was  seised  of  the  land;  but  he  cannot  have  it 
for  any  act  done  after  the  disseisin  until  he  hath  gained  possession 
by  re-entry,  and  then  he  may  well  maintain  it  for  the  intermediate 
damage  done;  for  after  kis  re-entry  the  law,  by  a  kind  o(  jus  post- 
liminii,  supposes  the  freehold  to  have  all  along  continued  in  him. 
Neither  by  the  common  law,  in  case  of  an  intrusion  or  deforce- 
ment, could  the  party  kept  out  of  possession  sue  the  wrong-doer 
by  a  mode  of  redress  which  was  calculated  merely  for  injuries  com- 
mitted against  the  land  while  in  the  possession  of  the  owner.   .  .  . 

A  man  is  answerable  for  not  only  his  own  trespass,  but  that  of 
his  cattle  also;  for,  if  by  his  negligent  keeping  they  stray  upon  the 
land  of  another  (and  much  more  if  he  permits  or  drives  them  on) 
and  they  there  tread  down  his  neighbor's  herbage  and  spoil  his  corn 
or  his  trees,  this  is  a  trespass  for  which  the  owner  must  answer  in 
damages,  and  the  law  gives  the  party  injured  a  double  remedy  in 
this  case,  by  permitting  him  to  distrain  the  cattle  thus  damage- 
feasant,  or  doing  damage,  till  the  owner  shall  make  him  satisfac- 
tion, or  else  by  leaving  him  to  the  common  remedy  in  fore  conten- 
tioso,  by  action.  And  the  action  that  lies  in  either  of  these  cases 
of  trespass  committed  upon  another's  land  either  by  a  man  himself 
or  his  cattle  is,  the  action  of  trespass  vi  et  armis,  whereby  a  man  is 
called  upon  to  answer  quare  vi  et  armis  dausum  ipsius,  A.,  apudB., 
f regit,  et  blada  ipsius  A.,  ad  valentiam  centum  solidorum  ibidem 
nuper  crescentia  cum  quibusdam  averiis  depastus  fuit,  concidcavit,  et 
consumpsit,  etc.:  for  the  law  always  couples  the  idea  of  force  with 
that  of  intrusion  upon  the  property  of  another.  And  herein,  if 
any  unwarrantable  act  of  the  defendant  or  his  beasts  in  coming 
upon  the  land  be  proved,  it  is  an  act  of  trespass  for  which  the 


TORTS  503 

plaintiff  must  recover  some  damages;  such,  however,  as  the  jury 
shall  think  proper  to  assess.  .  .   . 

In  some  cases  trespass  is  justifiable,  or,  rather,  entry  on  another's 
land  or  house  shall  not  in  those  cases  be  accounted  trespass;  as 
if  a  man  comes  thither  to  demand  or  pay  money  there  payable,  or 
to  execute  in  a  legal  manner  the  process  of  the  law.  Also,  a  man 
may  justify  entering  into  an  inn  or  pul)lic  house  without  the  leave 
of  the  owner  first  specially  asked,  because  when  a  man  professes 
the  keeping  such  inn  or  public  house  he  thereby  gives  a  general 
license  to  any  person  to  enter  his  doors.  So  a  landlord  may  justify 
entering  to  distrain  for  rent;  a  commoner,  to  attend  his  cattle 
commoning  on  another's  land;  and  a  reversioner,  to  see  if  any 
waste  be  committed  on  the  estate ;  for  the  apparent  necessity  of  the 
thing.  Also,  it  hath  been  said  that,  by  the  common  law  and  cus- 
tom of  England,  the  poor  are  allowed  to  enter  and  glean  upon 
another's  ground  after  the  harvest,  without  being  guilty  of  trespass: 
which  humane  provision  seems  borrowed  from  the  Mosaical  law. 

In  like  manner  the  common  law  warrants  the  hunting  of  ravenous 
beasts  of  prey,  as  badgers  and  foxes,  in  another  man's  land,  be- 
cause the  destroying  stich  creatures  is  said  to  be  profitable  to  the 
public.  But  in  cases  where  a  man  misdemeans  himself  or  makes 
an  ill  use  of  the  authority  with  which  the  law  intrusts  him,  he 
shall  be  accounted  a  trespasser  ab  initio:  as  if  one  comes  into  a 
tavern  and  will  not  go  out  in  a  reasonable  time,  but  tarries  there 
all  night  contrary  to  the  inclinations  of  the  owner;  this  wrongful 
act  shall  affect  and  have  relation  back,  even  to  his  first  entry,  and 
make  the  whole  a  trespass.  But  a  bare  non-feasance,  as  not  paying 
for  the  wine  he  calls  for,  will  not  make  him  a  trespasser;  for  this 
is  only  a  breach  of  contract,  for  which  the  taverner  shall  have  an 
action  of  debt  or  assumpsit  against  him.  So,  if  a  landlord  distrained 
for  rent  and  wilfully  killed  the  distress,  this,  by  the  common  law, 
made  him  a  trespasser  ab  initio:  and  so,  indeed,  would  any  other 
irregularity  have  done,  till  the  statute  11  Geo.  II  c.  19,  which  enacts 
that  no  subseqent  irregularity  of  the  landlord  shall  make  his  first 
entry  a  trespass;  but  the  party  injured  shall  have  a  special  action 
of  trespass  or  on  the  case,  for  the  real  specific  injury  sustained, 
unless  tender  of  amends  hath  been  made.  But  still,  if  a  reversioner, 
who  enters  on  pretense  of  seeing  waste,  breaks  the  house,  or  stays 
there  all  night;  or  if  the  commoner  who  comes  to  tend  his  cattle 
cuts  down  a  tree;  in  these  and  similar  cases  the  law  judges  that 
he  entered  for  this  unlawful  purpose,  and  therefore,  as  the  act  which 


504  ACTS 

demonstrates  such  his  purpose  Is  a  trespass,  he  shall  be  esteemed 
a  trespasser  ab  initio.  So  also,  in  the  case  of  hunting  the  fox  or 
badger,  a  man  cannot  justify  breaking  the  soil  and  digging  him  out 
of  his  earth;  for  though  the  law  warrants  the  hunting  of  such  nox- 
ious animals  for  the  public  good,  yet  it  is  held  that  such  things  must 
be  done  in  an  ordinary  and  usual  manner;  therefore,  as  there  is 
an  ordinary  course  to  kill  them,  viz.,  by  hunting,  the  court  held 
that  the  digging  for  them  was  unlawful. 

A  man  may  also  justify  in  an  action  of  trespass,  on  account  of 
the  freehold  and  right  of  entry  being  in  himself;  and  this  defense 
brings  the  title  of  the  estate  in  question.  This  is  therefore  one  of 
the  ways  devised,  since  the  disuse  of  real  actions,  to  try  the  proper- 
ty of  estates;  though  it  is  not  so  usual  as  that  by  ejectment,  be- 
cause that,  being  now  a  mixed  action,  not  only  gives  damages  for 
the  ejection,  but  also  possession  of  the  land:  whereas  in  trespass, 
which  is  merely  a  personal  suit,  the  right  can  be  only  ascertained, 
but  no  possession  delivered ;  nothing  being  recovered  but  damages 
for  the  wrong  committed. 


OBLIGATIONS  505 


CHAPTER  XI 
OBLIGATIONS' 

Holland,  Jurisprudence,  Chap.  XII. 

An  obligation,  as  its  etymology  denotes,  is  a  tie  whereby  one  per- 
son is  bound  to  perform  some  act  for  the  benefit  of  another.  In 
some  cases  the  two  parties  agree  thus  to  be  bound  together,  in  other 
cases  they  are  bound  without  their  consent.  In  every  case  it  is  the 
law  which  ties  the  knot,  and  its  untying,  ''solntio,''  is  competent 
only  to  the  same  authority.  There  are  cases  in  which  a  merely 
moral  duty,  giving  rise  to  what  is  called  a  "natural,"  as  opposed 
to  a  "civil,"  obligation,  will  incidentally  receive  legal  recognition. 
So  if  a  person  who  owes  a  debt  pays  it  in  ignorance  that  it  is  barred 
by  the  statutes  of  limitation,  he  will  not  be  allowed  to  recover  it 
back. 

The  right  which,  looked  at  from  the  point  of  view  of  the  law 
which  imposes  it,  is  described  as  an  obligation,  is  described,  from 
the  point  of  view  of  the  person  of  inherence,  as  a  ''jus  in  personam.'' 
The  difference  between  a  right  of  this  kind  and  of  the  kind  dis- 
cussed in  the  preceding  chapter  is  obvious  enough. 

When  a  man  owns  an  estate,  a  general  duty  is  laid  upon  all  the 
world  to  refrain  from  trespassing  on  his  land.  If  he  contracts  with 
a  landscape  gardener  to  keep  his  grounds  in  order  for  so  much  a 
year,  then  the  gardener  owes  to  the  landowner  a  special  duty, 
over  and  above  the  duty  owed  to  him  by  all  the  world  besides.  If 
a  surgeon  is  practising  in  a  town,  while  there  is  a  duty  incumbent 
on  all  not  to  intimidate  patients  from  resorting  to  him,  or  otherwise 
molest  him  in  the  exercise  of  his  profession,  there  is  no  general  duty 
not  to  compete  for  his  practice.  Any  one  may  legally  establish 
a  rival  surgery  next  door.  Suppose,  however,  that  the  surgeon  has 
bought  his  business  from  a  predecessor,  who,  in  consideration  of 
being  well  paid,  has  covenanted  not  to  practise  within  twenty 
miles  of  the  town  in  question.     Here  the  predecessor,  beyond  and 

'  Maine,  Ancient  Law   (American  ed.)  306-314;  Markby,   Elements  of  Law, 
§§624-663;    Salmond,  Jurisprudence,    §§  L80-185. 


506  OBLIGATIONS 

abo\e  the  duties  owed  by  others  to  his  successor,  owes  him  the 
special  duty  of  not  competing  with  him  by  the  exercise  of  his  pro- 
fession in  the  neighborhood.  In  the  cases  supposed,  the  landowner 
and  the  practising  surgeon  have  respectively  rights  "m  personam,'' 
against  the  gardener  and  the  retired  surgeon,  over  and  above  the 
rights  "/«  rcw"  which  they  enjoy  as  against  every  one  else. 

Most  frequently  antecedent  rights  ^'in  personam''  arise,  as  in  the 
above  cases,  out  of  the  agreement  of  the  parties.  They  are,  how- 
ever, often  due  to  some  cause  with  which  the  parties  have  nothing 
to  do.  In  these  cases,  although  the  person  of  incidence  has  not 
undertaken  a  special  duty  to  the  person  of  inherence,  yet  the  Law 
casts  that  duty  upon  him,  as  if  he  had  so  undertaken  it.  There  is 
a  ligeance  between  two  individuals,  although  the  chain  that  binds 
them  was  not  linked  by  their  own  hands.  Every  one  has,  for  instance, 
a  right  that  public  ministerial  officers,  such  as  sheriffs,  registrars,  or 
postmen,  shall  exercise  their  functions  for  his  benefit  when  oc- 
casions arise  entitling  him  to  their  services.  Similar  rights  "m  per- 
sonam" are  enjoyed  against  persons  filling  certain  private  fiduciary 
positions,  such  as  trustees,  executors,  administrators,  and  trustees 
of  bankrupts.  So  also  against  persons  who  happen  to  enter  into 
certain  transitory  relations  with  others,  such  as  persons  to  whom 
money  has  been  paid  by  mistake,  or  whose  affairs  have  been  man- 
aged by  a  "negotioritni  gcstor."  Finally,  against  persons  who  occupy 
certain  family  relationships  to  others,  e.  g.,  against  wives  and 
children,  and  vice  versa  against  husbands  and  parents. 

Anson,  Contracts,  Pt.  I,  §  2. 

Obligation  is  a  legal  bond  whereby  constraint  is  laid  upon  a 
person  or  group  of  persons  to  act  or  forbear  on  behalf  of  another 
person  or  group. 

Its  characteristics  seem  to  be  these. 

1 .  A  control.  It  consists  in  a  control  exercisable  by  one  or  both 
of  two  persons  or  groups  over  the  conduct  of  the  other.  They  are 
thus  bound  to  one  another,  by  a  tie  which  the  Roman  lawyers 
called  vinculum  juris,  which  lasts,  or  should  last,  until  the  objects 
of  the  control  are  satisfied,  when  their  fulfillment  effects  a  soliitio 
ohligationis ,  an  unfastening  of  the  legal  bond.  That  this  unfastening 
may  take  place  in  other  ways  than  by  fulfillment  will  be  shown 
hereafter. 

2.  Two  definite  parties.  Such  a  relation  as  has  been  described 
necessitates  two  parties,  and  these  must  be   definite. 


OBLIGATIONS  507 

There  must  be  two,  for  a  man  cannot  be  under  an  obligation  to 
himself,  or  even  to  himself  in  conjunction  with  others.  Where  a 
man  borrowed  money  from  a  fund  in  which  he  and  others  were 
jointly  interested,  and  covenanted  to  repay  the  money  to  the  joint 
account,  it  was  held  that  he  could  not  be  sued  upon  his  covenant. 
"The  covenant  to  my  mind  is  senseless,"  said  Pollock,  C.  B. 
"I  do  not  know  what  is  meant  in  point  of  law  by  a  man  paying 
himself." 

And  the  persons  must  be  definite.  A  man  cannot  be  obliged  or 
bound  to  the  entire  community:  his  liabilities  to  the  political 
society  of  which  he  is  a  member  are  matter  of  public  or  criminal 
law.  Nor  can  the  whole  community  be  under  an  obligation  to 
him:  the  right  on  his  part  correlative  to  his  liabilities  aforesaid 
would  be  a  right  in  rem,  would  be  in  the  nature  of  property  as  op- 
posed to  obligation.  The  word  obligation  has  been  unfortunately 
used  in  this  sense  by  Austin  and  Bentham  as  including  the  general 
duty,  which  the  law  imposes  on  all,  to  respect  such  rights  as  the 
law  sanctions.  Whether  the  right  is  to  personal  freedom  or  security, 
to  character,  or  to  those  more  material  objects  which  we  commonly 
call  property,  it  imposes  a  corresponding  duty  on  all  to  forbear 
from  molesting  the  right.  Such  a  right  is  a  right  in  rem.  But  it  is 
of  the  essence  of  obligation  that  the  liabilities  which  it  imposes 
are  imposed  on  definite  persons,  and  are  themselves  definite:  the 
rights  which  it  creates  are  rights  in  personam. 

3.  Definite  liabilities.  The  liabilities  of  obligation  relate  to 
definite  acts  or  forbearances.  The  freedom  of  the  person  bound 
is  limited  only  in  reference  to  some  particular  act  or  series  or  class 
of  acts.  A  general  control  over  the  conduct  of  another  would  affect 
his  status  as  a  free  man,  but  obligation,  as  was  said  by  Savigny, 
is  to  individual  freedom  what  servitus  is  to  dominium.  One  may 
work  out  the  illustration  thus:  I  am  owner  of  a  field;  my  pro- 
prietary rights  are  general  and  indefinite ;  my  neighbor  has  a  right 
of  way  over  my  field ;  my  rights  are  to  that  extent  curtailed  by  his, 
but  his  rights  are  very  definite  and  special.  So  with  obligation. 
My  individual  freedom  is  generally  unlimited  and  indefinite.  As 
with  my  field  so  with  myself,  I  may  do  what  I  like  with  it  so  long 
as  I  do  not  infringe  the  rights  of  others.  But  if  I  contract  to  do 
work  for  A  by  a  certain  time  and  for  a  fixed  reward,  my  general 
freedom  is  abridged  by  the  special  right  of  A  to  the  performance 
by  me  of  the  stipulated  work,  and  he  too  is  in  like  manner  obliged 
to  receive  the  work  and  pay  the  reward. 


508  OBLIGATIONS 

4.  Reducible  to  a  money  value.  The  matter  of  the  obligation, 
the  thing  to  be  done  or  forborne,  must  possess,  at  least  in  the  eye 
of  the  law,  a  pecuniary  value,  otherwise  it  would  be  hard  to  dis- 
tinguish legal  from  moral  and  social  relations.  Gratitude  for  a 
past  kindness  cannot  be  measured  by  any  standard  of  value,  nor 
can  the  annoyance  or  disappointment  caused  by  the  breach  of  a 
social  engagement;  and  courts  of  law  can  only  deal  with  matters 
to  which  the  parties  have  attached  an  importance  estimable  by  the 
standard  of  value  current  in  the  country  in  which  they  are. 

Obligation  then  is  a  control  exercisable  by  definite  persons  over 
definite  persons  for  the  purpose  of  definite  acts  or  forbearances 
reducible  to  a  money  value. 

1.     OBLIGATIONS  ARISING  FROM  LEGAL 
TRANSACTIONS 

Salmond,  Jurisprudence,  §§  121-123. 

Acts  in  the  law  are  of  two  kinds,  which  may  be  distinguished  as 
unilateral  and  bilateral.  A  unilateral  act  is  one  in  which  there  is 
only  one  party  whose  will  is  operative;  as  in  the  case  of  testa- 
mentary disposition,  the  exercise  of  a  power  of  appointment,  the 
revocation  of  a  settlement,  the  avoidance  of  a  voidable  contract, 
or  the  forfeiture  of  a  lease  for  breach  of  covenant.  A  bilateral  act, 
on  the  other  hand,  is  one  which  involves  the  consenting  wills  of 
two  or  more  distinct  parties;  as,  for  example,  a  contract,  a  con- 
veyance, a  mortgage,  or  a  lease.  Bilateral  acts  in  the  law  are  called 
agreements  in  the  wide  and  generic  sense  of  that  term.  There  is, 
indeed,  a  narrow  and  specific  use,  in  which  agreement  is  synonymous 
with  contract,  that  is  to  say,  the  creation  of  rights  in  personam  by 
way  of  consent.  The  poverty  of  our  legal  nomenclature  is  such, 
however,  that  we  cannot  afford  thus  to  use  these  two  terms  as 
synonymous.  We  shall  therefore  habitually  use  agreement  in  the 
wide  sense,  to  include  all  bilateral  acts  in  the  law,  whether  they 
are  directed  to  the  creation,  or  to  the  transfer,  or  to  the  extinction, 
of  rights.  In  this  sense  conveyances,  mortgages,  leases,  or  releases 
are  agreements  no  less  than  contracts  are. 

Unilateral  acts  in  the  law  are  divisible  into  two  kinds  in  respect 
of  their  relation  to  the  other  party  concerned.  For  in  some  instances 
they  are  adverse  to  him;  that  is  to  say,  they  take  effect  not  only 
without  his  consent,  but  notwithstanding  his  dissent.  His  will  is 
wholly  inoperative  and  powerless  in  the  matter.     This  is  so,  for 


LEGAL  TRANSACTIONS  509 

example,  in  the  case  of  a  re-entry  by  a  landlord  upon  a  tenant 
for  breach  of  covenant;  or  the  exercise  of  a  power  of  appointment, 
as  against  the  persons  entitled  in  default  of  appointment;  or  the 
avoidance  of  a  voidable  contract;  or  the  exercise  by  a  mortgagee 
of  his  power  of  sale.  In  other  cases  it  is  not  so;  the  operation  of 
the  unilateral  act  is  subject  to  the  dissent  of  the  other  party  affected 
by  it,  though  it  does  not  require  his  consent.  In  the  meantime, 
pending  the  expression  of  his  will,  the  act  has  merely  a  provisional 
and  contingent  operation.  A  will,  for  example,  involves  nothing 
save  the  unilateral  intent  and  assent  of  the  testator.  The  benefi- 
ciaries need  know  nothing  of  it;  they  need  not  yet  be  in  existence. 
But  if  they  subsequently  dissent,  and  reject  the  rights  so  transferred 
to  them,  the  testament  will  fail  of  its  effect.  If,  on  the  other  hand, 
they  accept  the  provisions  made  on  their  behalf,  the  operation  of 
the  will  forthwith  ceases  to  be  provisional  and  becomes  absolute. 
Similarly  a  settlement  of  property  upon  trust  need  not  be  known  or 
consented  to  ab  initio  by  the  beneficiaries.  It  may  be  a  purely 
unilateral  act,  subject,  however,  to  repudiation  and  avoidance  by 
the  persons  intended  to  be  benefited  by  it.  So  I  may  effectually 
grant  a  mortgage  or  other  security  to  a  creditor  who  knows  nothing 
of  it. 

Where  there  are  more  than  two  parties  concerned  in  any  act  in 
the  law,  it  may  be  bilateral  in  respect  of  some  of  them  and  unilateral 
in  respect  of  others.  Thus  a  conveyance  of  property  by  A  to  B 
in  trust  for  C  may  be  bilateral  as  to  A  and  B  inter  se  —  operating 
by  the  mutual  consent  of  these  two  —  while  it  may  at  the  same 
time  be  unilateral  as  between  A  and  B  on  the  one  side  and  C  on 
the  other — C  having  no  knowledge  of  the  transaction.  So  the 
exercise  of  a  mortgagee's  power  of  sale  is  bilateral  as  between  mort- 
gagee and  purchaser,  but  unilateral  so  far  as  regards  the  mortgagor. 

Of  all  vestitive  facts,  acts  in  the  law  are  the  most  important; 
and  among  acts  in  the  law,  agreements  are  entitled  to  the  chief 
place.  Unilateral  acts  are  comparatively  infrequent  and  unim- 
portant. The  residue  of  this  chapter  wall  therefore  be  devoted  to 
the  consideration  of  the  grounds,  modes,  and  conditions  of  the 
operation  of  agreement  as  an  instrument  of  the  creation,  transfer, 
and  extinction  of  rights.  A  considerable  portion  of  what  is  to  be 
said  in  this  connection  will,  however,  be  applicable  mutatis  mutandis 
to  unilateral  acts  also. 

The  importance  of  agreement  as  a  vestitive  fact  lies  in  the 
universality  of  its  operation.     There  are  few  rights  which  cannot 


510  OBLIGATIONS 

be  acquired  through  the  assent  of  the  persons  upon  whom  the  corre- 
lative duties  are  to  be  imposed.  There  are  few  rights  which  cannot 
be  transferred  to  another  by  the  will  of  him  in  whom  they  are 
presently  vested.  There  are  few  which  are  not  extinguished  when 
their  owner  no  longer  desires  to  retain  them.  Of  that  great  multi- 
tude of  rights  and  duties  of  which  the  adult  member  of  a  civilized 
community  stands  possessed,  the  great  majority  have  their  origin 
in  agreements  made  by  him  with  other  men.  By  agreements  of 
contrary  intent  he  may  strip  himself  almost  as  destitute  of  rights 
and  duties,  as  when  in  the  scantiest  of  juridical  vesture  he  made 
his  first  appearance  before  the  law.  Invito  heneficiiim  non  datur, 
said  the  Romans. 

By  what  reasons,  then,  is  the  law  induced  to  allow  this  far 
reaching  operation  to  the  fact  of  agreement?  Why  should  the  mere 
consent  of  the  parties  be  permitted  in  this  manner  to  scand  for 'a 
title  of  right?  Are  not  rights  the  subject-matter  of  justice,  and  is 
justice  a  mere  matter  of  convention  varying  with  the  wills  of  men? 

The  reasons  are  two  in  number.  Agreement  is  in  the  first  place 
evidential  of  right,  and  in  the  second  place  constitutive  of  it. 
There  is  in  general  no  better  evidence  of  the  justice  of  an  arrange- 
ment than  the  fact  that  all  persons  whose  interests  are  affected  by 
it  have  freely  and  with  full  knowledge  consented  to  it.  Men  are 
commonly  good  judges  of  their  own  interests,  and  in  the  words  of 
Hobbes  "there  is  not  ordinarily  a  greater  sign  of  the  equal  distribu- 
tion of  anything,  than  that  ev'ery  man  is  contented  with  his  share." 
When,  therefore,  all  interests  are  satisfied,  and  every  man  is  con- 
tent, the  law  may  safely  presume  that  justice  has  been  done,  and 
that  each  has  received  his  own.  The  determination  of  the  law  is 
needed  only  in  default  of  the  agreement  of  the  parties.  Hence  it  is, 
that  he  who  agrees  with  another  in  any  declaration  of  their  respec- 
tive rights  and  duties  will  not  be  suffered  to  go  back  from  his  word, 
and  will  not  be  heard  to  dispute  the  truth  of  his  declaration.  The 
exceptions  to  this  rule  are  themselves  defined  by  equally  rigid 
rules ;  and  he  who  would  disclaim  a  duty  which  he  has  thus  imposed 
upon  himself,  or  reclaim  a  right  which  he  has  thus  transferred  or 
abandoned,  must  bring  himself  within  one  of  those  predetermined 
exceptions.  Otherwise  he  will  be  held  bound  by  his  own  words. 
This  conclusive  presumption  of  the  truth  of  consensual  declaration 
of  right  is,  however,  only  one  of  the  foundations  of  the  law  of  agree- 
m.ent.  Consent  is  in  many  cases  truly  constitutive  of  right,  in- 
stead of  merely  evidential  of  it.     It  is  one  of  the  leading  principles 


LEGAL  TRANSACTIONS  511 

of  justice  to  guarantee  to  men  the  fulfillment  of  their  reasonable  ex- 
pectations. In  all  matters  that  are  otherwise  indifferent,  expectation 
is  of  predominant  influence  in  the  determination  of  the  rule  of 
right,  and  of  all  the  grounds  of  rational  expectation  there  is  none 
of  such  general  importance  as  mutual  consent.  "The  human  will," 
says  Aquinas,  "is  able  by  way  of  consent  to  make  a  thing  just; 
provided  that  the  thing  is  not  in  itself  repugnant  to  natural  justice." 

There  is  an  obvious  analogy  between  agreement  and  legislation  — 
the  former  being  the  private  and  the  latter  the  public  declaration 
and  establishment  of  rights  and  duties.  By  way  of  legislation  the 
state  does  for  its  subjects  that  which  in  other  cases  it  allows  them 
to  do  for  themselves  by  way  of  agreement.  As  to  the  respective 
spheres  of  these  tw^o  operations,  the  leading  maxim  is  ''Modus  et 
conventio  vincunt  legem.''  Save  when  the  interests  of  the  public  at 
large  demand  a  different  rule,  the  autonomy  of  consenting  parties 
prevails  over  the  legislative  will  of  the  state.  So  far  as  may  be,  the 
state  leaves  the  rule  of  right  to  be  declared  and  constituted  by  the 
agreement  of  those  concerned  with  it.  So  far  as  possible,  it  con- 
tents itself  with  executing  the  rules  which  its  subjeccs  have  made 
for  themselves.  And  in  so  doing  it  acts  wisely.  For  in  the  first 
place,  the  administration  of  justice  is  enabled  in  this  manner  to 
escape,  in  a  degree  not  otherwise  attainable,  the  disadvantages 
inherent  in  the  recognition  of  rigid  principles  of  law.  Such  prin- 
ciples we  must  have;  but  if  they  are  established  pro  re  nata  by 
the  parties  themselves,  they  will  possess  a  measure  of  adaptability 
to  individual  cases  which  is  unattainable  by  the  more  general  legis- 
lation of  the  state  itself.  Amid  the  infinite  diversities  and  com- 
plexities of  human  affairs  the  state  wisely  despairs  of  truly  formu- 
lating the  rules  of  justice.  So  far  as  possible,  it  leaves  the  task 
to  those  who  by  their  nearness  to  the  facts  are  better  qualified  for 
it.  It  says  to  its  subjects:  Agree  among  yourselves  as  to  what  is 
just  in  your  individual  concerns,  and  I  shall  enforce  your  agreement 
as  the  rule  of  right. 

In  the  second  place,  men  are  commonly  better  content  to  bear 
the  burdens  which  they  themselves  have  taken  up,  than  those  placed 
upon  them  by  the  will  of  a  superior.  They  acquiesce  easily  in 
duties  of  their  own  imposition,  and  are  well  pleased  with  rights  of 
their  ow^n  creation.  The  law  or  the  justice  which  best  commends 
itself  to  them  is  that  which  they  themselves  have  made  or  declared. 
Wherefore,  instead  of  binding  its  subjects,  the  state  does  w'ell  in 
allowing  them  to  bind  themselves. 


512  OBLIGATIONS 

Agreements  are  divisible  into  three  classes,  for  they  either  create 
rights  or  transfer  them,  or  extinguish  them.  Those  which  create 
rights  are  themselves  divisible  into  two  sub-classes,  distinguishable 
as  contracts  and  grants.  A  contract  is  an  agreement  which  creates 
an  obligation  or  right  in  persona?n  between  the  parties  to  it.  A 
grant  is  an  agreement  which  creates  a  right  of  any  other  description; 
examples  being  grants  of  leases,  easements,  charges,  patents,  fran- 
chises, powers,  licenses,  and  so  forth.  An  agreement  which 
transfers  a  right  may  be  termed  generally  an  assignment.  One 
which  extinguishes  a  right  is  a  release,  discharge,  or  surrender. 

As  already  indicated,  a  contract  is  an  agreement  intended  to 
create  a  right  in  personam  between  the  contracting  parties.  No 
agreement  is  a  contract  unless  its  effect  is  to  bind  the  parties  to 
each  other  by  the  vincidum  juris  of  a  newly  created  personal  right. 
It  commonly  takes  the  form  of  a  promise  or  set  of  promises.  That 
is  to  say,  a  declaration  of  the  consenting  wills  of  two  persons  that 
one  of  them  shall  henceforth  be  under  an  obligation  to  the  other 
naturally  assumes  the  form  of  an  undertaking  by  the  one  with  the 
other  to  fulfill  the  obligation  so  created.  Not  every  promise,  how- 
ever, amounts  to  a  contract.  To  constitute  a  contract  there  must 
be  not  merely  a  promise  to  do  a  certain  act,  but  a  promise,  express 
or  implied,  to  do  this  act  as  a  legal  duty.  When  I  accept  an  in- 
vitation to  dine  at  another  man's  house,  I  make  him  a  promise, 
but  enter  into  no  contract  with  him.  The  reason  is  that  our  wills, 
though  consenting,  are  not  directed  to  the  creation  of  any  legal 
right  or  to  any  alteration  of  our  legal  relations  towards  each  other. 
The  essential  form  of  a  contract  is  not :  I  promise  this  to  you;  but: 
I  agree  with  you  that  henceforth  you  shall  have  a  legal  right  to 
demand  and  receive  this  from  me.  Promises  that  are  not  reducible 
to  this  form  are  not  contracts.  Therefore  the  consent  that  is 
requisite  for  the  creation  of  rights  by  way  of  contract  is  essentially 
the  same  as  that  required  for  their  transfer  or  extinction.  The 
essential  element  in  each  case  is  the  express  or  tacit  reference  to  the 
legal  relations  of  the  consenting  parties. 

(a)   Contracts 

Holland,    Jurisprudence,    Chap.  XII. 

We  are  concerned  in  the  present  chapter  only  with  that  narrower, 
and  more  usual,  sense  of  the  term  contract,  which  restricts  it  to 
signify  such  a  two-sided  act  as  gives  rise  to  rights  in  personam. 


CONTRACTS  513 

In  this  sense  it  is  defined  by  Savigny  as  the  "union  of  several  in 
an  accordant  expression  of  will,  with  the  object  of  creating  an 
obligation  between  them,"  by  an  old  English  authority  as  a  "speech 
between  two  parties  whereby  something  is  to  be  done;"  by  Pothier 
as  'Tespece  de  conveiition  qui  a  pour  objet  de  former  quelque 
engag  menf';  by  M.  Ahrens  as  "/e  consentement  exprime  de 
plusieiirs  personnes  d  Veffet  de  crier  entre  elles  un  rapport  ohligatoire 
sur  iin  objet  de  droit."  "When,"  said  Vice-Chancellor  Kindersley, 
"both  parties  will  the  same  thing,  and  each  communicates  his  will 
to  the  other,  with  a  mutual  engagement  to  carry  it  into  efTect, 
then  an  agreement  or  contract  between  the  two  is  constituted." 
It  is  an  expression  of  agreement  entered  into  by  several,  by  which 
rights  "in  personam"  are  created  available  against  one  or  more  of 
them 

It  is  necessary  carefully  to  distinguish  between  the  two-sided 
act  itself  and  the  results  to  which  it  gives  rise.  The  act  alone  is 
the  contract,  the  resulting  contractual  relation  is  quite  a  different 
thing;  although,  from  the  want  of  an  appropriate  terminology,  the 
two  things  are  sometimes  confused  with  one  another  in  English 
law.  Thus  we  talk  of  "assigning  a  contract,"  while  what  is  really 
meant  is  the  assignment  of  the  rights  and  liabilities  which  arise  out 
of  the  contract.  In  the  language  of  Roman  law,  the  two  ideas 
are  distinguished  with  the  utmost  precision.     The  ''contractus"  is 

one  thing,  the  "obligatio  ex  contractu"  is  another 

The  State  lends  its  force  to  assure  the  performance  of  those 
promises  of  which  it  thinks  fit  to  take  cognizance.  This  it  endeavors 
to  do  by  putting  some  sort  of  pressure  upon  the  will  of  the  promisor, 
which  is  therefore  indubitably  so  far  subjected  to  the  will  of  the 
promisee.  The  fact  that  the  pressure  thus  applied  may  often  fail 
of  its  effect  has  given  rise  to  an  ingenious  inversion  of  the  theory 
of  contract.  According  to  Mr.  Justice  Holmes,  a  contract  may  be 
regarded  as  "the  taking  of  a  risk."  "The  only  universal  conse- 
quence of  a  legally  binding  promise  is,  that  the  law  makes  the 
promisor  pay  damages  if  the  promised  event  does  not  come  to 
pass.  In  every  case  it  leaves  him  free  from  interference  until  the 
time  for  fulfillment  has  gone  by,  and  therefore  free  to  break  his 
contract  if  he  chooses."  But,  as  the  able  advocate  of  this  view 
is  compelled  to  admit,  "when  people  make  contracts  they  usually 
contemplate  the  performance  rather  than  the  breach";  nor  can 
it  be  seriously  m.aintained  that  the  performance  of  a  contract  is 
more  optional  than  that  of  any  other  legal  duty.     Libel  or  assault, 


514  OBLIGATIONS 

equally  with  breach  of  contract,  are  possible  to  any  one  who  is 
prepared  to  be  answerable  in  damages  for  the  indulgence  of  a  taste 
for  defamation  or  violence. 

An  obligatory  contract  is,  as  we  have  seen,  a  species  of  agree- 
ment. But  many  agreements  produce  no  legal  efTect  upon  the  rela- 
tions of  the  parties  one  to  another.  It  will  therefore  be  necessary 
to  enquire  more  minutely  into  the  characteristics  of  those  consen- 
sual acts  which  are  recognized  by  law  as  giving  rise  to  obligations. 

Savigny's  analysis  of  contract,  substantially  accepted  by  the 
majority  of  the  more  recent  German  authorities,  is  to  the  following 
effect.  Its  constituent  elements  are,  he  says:  (i)  several  parties, 
(ii)  an  agreement  of  their  wills  {sie  mussen  irgend  Etivas,  imd  zwar 
Beide  dasselbe,  hestimmt  geivoJt  haben),  {in)  a  mutual  communi- 
cation of  this  agreement  {sie  mussen  sich  dieser  U ehereinstimmimg 
heiviisst  geworden  seyn,  das  heisst  der  Wille  muss  gegenseitig  erklaert 
warden  seyn),  (iv)  an  intention  to  create  a  legal  relation  between 
the  parties. 

In  one  point  only  does  this  analysis  seem  open  to  criticism.  Is 
it  the  case  that  a  contract  is  not. entered  into,  unless  the  wills  of 
the  parties  are  really  at  one?  Must  there  be,  as  Savigny  puts  it, 
"a  union  of  several  wills  to  a  single,  whole  and  undi\'ided  will"? 
Or  should  we  not  rather  say  that  here,  more  even  than  elsewhere, 
the  law  looks,  not  at  the  will  itself,  but  at  the  will  as  voluntarily 
manifested?  When  the  law  enforces  contracts,  it  does  so  to  pre- 
vent disappointment  of  well-founded  expectations,  which,  though 
they  usually  arise  from  expressions  truly  representing  intention, 
yet  may  occasionally  arise  otherwise. 

If,  for  instance,  one  of  the  parties  to  a  contract  enters  into  it, 
and  induces  the  other  party  to  enter  into  it,  resolved  all  the  while 
not  to  perform  his  part  under  it,  the  contract  will  surely  be  good, 
nevertheless.  Not  only  will  the  dishonest  contractor  be  unable 
to  set  up  his  original  dishonest  intent  as  an  excuse  for  non-perfor- 
mance, but  should  he,  from  any  change  of  circumstances,  become 
desirous  of  enforcing  the  agreement  against  the  other  party,  the 
latter  will  never  be  heard  to  establish,  even  were  he  in  a  position 
to  do  so,  by  irrefragable  proof,  that  at  the  time  when  the  agreement 
was  made,  the  parties  to  it  were  not  really  of  one  mind. 

(i)  Formal  - — •  Specialties. 

Danz,  Lehrbuch  der  Ceschichte  des  R  mischen  Reciits,  II,  sec.  142. 
The  oldest  law  of  the  Romans  recognized  no  will  as  in  existence  other  than  the 
spoken  will,  the  dictum.     W' hat  is  not  spoken  is  not  willed,  and  vice  versa,  only  that 


CONTRACTS  515 

is  willed  that  is  spoken.  Therefore,  in  legal  transactions,  the  words  take  effect 
entirely  independent  of  the  intention  they  are  to  express.  The  verba  are  effi- 
cacious, not  merely  to  the  extent  that  they  express  the  voluntas,  but,  for  the  law, 
their  literal  meaning  stands  for  voluntas  itself.  It  does  not  say:  "What  thou 
hast  willed  and  expressed,"  but  only:  "What  thou  hast  spoken."  Indeed,  it  is 
of  the  essence  of  the  strictum  jus  that  intention  as  such  is  of  no  importance. 
Therefore,  in  order  that  the  will  be  directed  to  an  agere,  all  parts  of  the  will  must 
be  expressed  in  speech.  It  is  not  enough  that  the  transaction  be  intended,  but 
there  must  also  be  expressed  in  speech  what  it  is  to  mean,  or  it  must  at  least  make 
this  meaning  recognizable  symbolically  through  a  generally  known  and  generally 
intelligible  symbol.  The  intention  which  is  only  to  be  found  by  infeience  is  not 
regarded  as  existing.  It  is  not  enough,  therefore,  to  merely  intend  a  transaction; 
it  must  also  be  designated  word  for  word  as  such.  It  is  not  enough  for  the  fetial 
to  throw  his  spear  into  the  land  of  the  enemy,  but  he  must  say  also  that  he  thereby 
makes  war. 

Blackstone,  Commentaries,  III,  154-157. 

Express  contracts  include  three  distinct  species;  debts,  covenants, 
and  promises. 

1.  The  legal  acceptance  of  debt  is,  a  sum  of  money  due  by  cer- 
tain and  express  agreement:  as,  by  a  bond  for  a  determinate  sum; 
a  bill  or  note;  a  special  bargain;  or  a  rent  reserved  on  a  lease; 
where  the  quantity  is  fixed  and  specific,  and  does  not  depend  upon 
any  subsequent  valuation  to  settle  it. 

The  non-payment  of  these  is  an  injury,  for  which  the  proper 
remedy  is  by  action  of  debt,  to  compel  the  performance  of  the 
contract  and  recover  the  specifical  sum  due.  This  is  the  shortest 
and  surest  remedy;  particularly  where  the  debt  arises  upon  a 
specialty,  that  is,  upon  a  deed  or  instrument  under  seal.  So  also, 
if  I  verbally  agree  to  pay  a  man  a  certain  price  for  a  certain  parcel 
of  goods,  and  fail  in  the  performance,  an  action  of  debt  lies  against 
me;  for  this  is  also  a  determinate  contract:  but  if  I  agree  for  no 
settled  price  I  am  not  liable  to  an  action  of  debt,  but  a  special 
action  on  the  case,  according  to  the  nature  of  my  contract.  And 
indeed  actions  of  debt  are  now  seldom  brought  but  upon  special 
contracts  under  seal ;  wherein  the  sum  due  is  clearly  and  precisely 
expressed  for,  in  case  of  such  an  action  upon  a  simple  contract, 
the  plaintiff  labors  under  two  difficulties.  First,  the  defendant 
has  here  the  same  advantage  as  in  action  of  detinue,  that  of  waging 
his  law,  or  purging  himself  of  the  debt  by  oath,  if  he  thinks  proper. 
Secondly,  in  an  action  of  debt  the  plaintiff  must  prove  the  whole 
debt  he  claims,  or  recover  nothing  at  all.  For  the  debt  is  one  single 
cause  of  action,  fixed  and  determined;  and  which  therefore,  if  the 
proof  varies  from  the  claim,  cannot  be  looked  upon  as  the  same 


516  OBLIGATIONS 

contract  whereof  the  performance  is  sued  for.  If,  therefore,  I 
bring  an  action  of  debt  for  30  /.,  I  am  not  at  liberty  to  prove  a 
debt  of  20  /.  and  recover  a  verdict  thereon:  any  more  than  if  I 
bring  an  action  of  detinue  for  a  horse,  I  can  thereby  recover  an  ox. 
For  I  fail  in  the  proof  of  that  contract,  which  my  action  or  com- 
plaint has  alleged  to  be  specific,  express,  and  determinate.  But  in 
an  action  on  the  case,  on  what  is  called  an  indebitatus  assumpsit, 
which  is  not  brought  to  compel  a  specific  performance  of  the  con- 
tract, but  to  recover  damages  for  its  non-performance,  the  implied 
assumpsit,  and  consequently  the  damages  for  the  breach  of  it,  are 
in  their  nature  indeterminate;  and  will  therefore  adapt  and  pro- 
portion themselves  to  the  truth  of  the  case  which  shall  be  proved, 
without  being  confined  to  the  precise  demand  stated  in  the  decla- 
ration. For  if  any  debt  be  proved,  however  less  than  the  sum 
demanded,  the  law  will  raise  a  promise  pro  tanto,  and  the  damages 
will  of  course  be  proportioned  to  the  actual  debt.  So  that  I  may 
declare  that  the  defendant,  being  indebted  to  me  in  30  /.,  undertook 
or  promised  to  pay  it,  but  failed ;  and  lay  my  damages  arising  from 
such  failure  at  what  sum  I  please:  and  the  jury  will,  according  to 
the  nature  of  my  proof,  allow  me  either  the  whole  in  damages,  or 
any  inferior  sum.  And,  even  in  actions  of  debt,  where  the  contract 
is  proved  or  admitted,  if  the  defendant  can  show  that  he  has 
discharged  any  part  of  it,  the  plaintiff  shall  recover  the  residue. 

2.  A  covenant  also,  contained  in  a  deed,  to  do  a  direct  act  or  to 
omit  one,  is  another  species  of  express  contract,  the  violation  or 
breach  of  which  is  a  civil  injury.  As  if  a  man  covenants  to  be  at 
York  by  such  a  day,  or  not  to  exercise  a  trade  in  a  particular  place, 
and  is  not  at  York  at  the  time  appointed,  or  carries  on  his  trade  in 
the  place  forbidden,  these  are  direct  breaches  of  his  covenant; 
and  may  be  perhaps  greatly  to  the  disadvantage  and  loss  of  the 
covenantee.  The  remedy  for  this  is  by  a  writ  of  covenant:  which 
directs  the  sheriff  to  command  the  defendant  generally  to  keep  his 
covenant  with  the  plaintiff  (without  specifying  the  nature  of  the 
covenant)  or  show  good  cause  to  the  contrary:  and  if  he  continues 
refractory,  or  the  covenant  is  already  so  broken  that  it  cannot 
now  be  specifically  performed,  then  the  subsequent  proceedings  set 
forth  with  precision  the  covenant,  the  breach,  and  the  loss  which 
has  happened  thereby:  whereupon  the  jury  will  give  damages  in 
proportion  to  the  injury  sustained  by  the  plaintiff,  and  occasioned 
bv  such  breach  of  the  defendant's  contract. 


CONTRACTS  517 

Holmes,  Common  Law,  271-274. 

A  charter  was  simply  a  writing.  As  few  could  write,  most 
people  had  to  authenticate  a  document  in  some  other  way,  for 
instance,  by  making  their  mark.  This  was,  in  fact,  the  universal 
practice  in  England  until  the  introduction  of  Norman  customs. 
With  them  seals  came  in.  But  as  late  as  Henry  H  they  were 
said  by  the  Chief  Justice  of  England  to  belong  properly  only 
to  kings  and  to  very  great  men,  I  know  no  ground  for  think- 
ing that  an  authentic  charter  had  any  less  effect  at  that  time 
when  not  under  seal  than  when  it  was  sealed.  It  was  only 
evidence  either  way,  and  is  called  so  in  many  of  the  early 
cases.  It  could  be  waived,  and  suit  tendered  in  its  place.  Its 
conclusive  effect  was  due  to  the  satisfactory  nature  of  the 
evidence,  not  to  the  seal. 

But  when  seals  came  into  use,  they  obviously  made  the  evidence 
of  the  charter  better,  in  so  far  as  the  seal  was  more  difficult  to 
forge  than  a  stroke  of  the  pen.  Seals  acquired  such  importance, 
that,  for  a  time,  a  man  was  bound  by  his  seal,  although  it  was 
affixed  without  his  consent.  At  last  a  seal  came  to  be  required, 
in  order  that  a  charter  should  have  its  ancient  effect. 

A  covenant  or  contract  under  seal  was  no  longer  a  promise  well 
proved ;  it  was  a  promise  of  a  distinct  nature,  for  which  a  distinct 
form  of  action  came  to  be  pro\'ided.  I  have  shown  how  the  require- 
ment of  consideration  became  a  rule  of  substantive  law,  and  also 
why  it  never  had  any  foothold  in  the  domain  of  covenants.  The 
exception  of  covenants  from  the  requirement  became  a  rule  of  sub- 
stantive law  also.  The  man  who  had  set  his  hand  to  a  charter, 
from  being  bound  because  he  had  consented  to  be,  and  because 
there  was  a  writing  to  prove  it,  was  now  held  by  force  of  the  seal 
and  by  deed  alone  as  distinguished  from  all  other  writings.  And 
to  maintain  the  integrity  of  an  inadequate  theory,  a  seal  was  said 
to  import  a  consideration. 

Nowadays,  it  is  sometimes  thought  more  philosophical  to  say 
that  a  covenant  is  a  formal  contract,  which  survives  alongside  of 
the  ordinary  consensual  contract,  just  as  happened  in  the  Roman 
law.  But  this  is  not  a  very  instructive  way  of  putting  it  either. 
In  one  sense,  everything  is  form  which  the  law  requires  in  order 
to  make  a  promise  binding  over  and  above  the  mere  expression 
of  the  promisor's  will.  Consideration  is  a  form  as  much  as  a  seal. 
The  only  difference  is,  that  one  form  is  of  modern  introduction, 
and  has  a  foundation  in  good  sense,  or  at  least  falls  in  with  our 


518  OBLIGATIONS 

common  habits  of  thought,  so  that  we  do  not  notice  it,  whereas 
the  other  is  a  survival  from  an  older  condition  of  the  law,  and  is 
less  manifestly  sensible,  or  less  familiar.  I  may  add,  that,  under 
the  influence  of  the  latter  consideration,  the  law  of  covenants  is 
breaking  down.  In  many  States  it  is  held  that  a  mere  scroll  or 
flourish  of  the  pen  is  a  sufficient  seal.  From  this  it  is  a  short 
step  to  abolish  the  distinction  between  sealed  and  unsealed 
instruments  altogether,  and  this  has  been  done  in  some  of  the 
western  States. 

While  covenants  survive  in  a  somewhat  weak  old  age,  and  debt 
has  disappeared,  leaving  a  vaguely  disturbing  influence  behind  it, 
the  whole  modern  law  of  contract  has  grown  up  through  the  medium 
of  the  action  of  assumpsit. 

Pollock,  Contracts,  Chap.  1. 

Except  in  the  case  of  simultaneous  declaration  just  mentioned,  a 
promise  is  regularly  either  the  acceptance  of  an  offer  or  an  offer  ac- 
cepted. Where  the  promise  is  embodied  in  a  deed,  there  is  an  ap- 
parent anomaly;  for  the  deed  is  irrevocable  and  binding  on  the 
promisor  from  the  moment  of  its  execution  by  him,  even  before 
any  acceptance  by  the  promisee.  But  this  depends  on  the  peculiar 
nature  of  a  deed  in  our  law.  The  party  who  sets  his  hand  and  seal 
to  a  deed  witnessing  his  promise  does  not,  strictly  speaking,  thereby 
create  an  obligation,  but  rather  declares  himself  actually  bound, 
under  normal  conditions.  In  fact  it  is  only  in  modern  times  that 
special  defenses,  on  the  ground  of  fraud  and  the  like,  have  been 
allowed  to  avail  a  man  against  his  own  deed.  Thus  the  questions 
of  consent  and  acceptance  are  not  open,  as  ordinary  questions  of 
fact,  to  any  discussion.  The  party  has  recorded  his  own  promise 
in  solemn  form,  and  cannot  require  proof  that  any  other  positive 
condition  was  satisfied.  As  matter  of  history,  the  very  object 
of  the  Anglo-Norman  writing  under  seal  was  to  dispense  with  any 
other  kind  of  proof,  and  to  substitute  the  authenticated  will  of  the 
parties  themselves  for  an  appeal  to  the  hazards  of  oath,  ordeal,  or 
judicial  combat.  It  is  not  that  an  anomalous  liability  is  created; 
the  contracting  party  is  estopped  (special  and  exceptional  causes 
excepted)  from  disputing  that  he  is  liable.  Not  the  promise,  but 
the.deed  itself,  is  irrevocable  and  operative  without  need  of  external 
confirmation.  W^hether  it  is  convenient,  on  the  whole,  for  the 
purposes  of  modern  law  to  retain  the  deed  with  its  ancient  qualities 
is  a  question  beyond  our  present  limits. 


CONTRACTS  519 

Ames,  Specialty  Contracts  and  Equitable  Defenses,  9  Harv. 
Law    Rev.    49-50. 

It  has  been  often  said  that  a  seal  imports  a  consideration,  as  if 
a  consideration  were  as  essential  in  contracts  by  specialty  as  it  is 
in  the  case  of  parol  promises.  But  it  is  hardly  necessary  to  point 
out  the  fallacy  of  this  view.  It  is  now  generally  agreed  that  the 
specialty  obligation,  like  the  Roman  stipidatio,  owes  its  validity 
to  the  mere  fact  of  its  formal  execution.  The  true  nature  of  a 
specialty  as  a  formal  contract  was  clearly  stated  by  Bracton : — 

''Per  scriptiirani  vero  ohligatnr  quis,  ut  si  quis  scripserit  alicni  se 
debere,  sive  pccunia  numerata  sit  sive  non,  cMigatnr  ex  script ura,  nee 
habebit  exceptionem  pecuniae  non  numeratae  contra  scripturam,  quia 
scripsit  se  debere.'' 

Bracton's  statement  is  confirmed  by  a  decision  about  a  century 
later.  The  action  was  debt  upon  a  covenant  to  pay  ^100  to  the 
plaintiff  upon  the  latter's  marrying  the  defendant's  daughter.  It 
was  objected  that  this  being  a  debt  upon  a  covenant  touching 
marriage  was  within  the  jurisdiction  of  the  spiritual  court.  But 
the  common-law  judges,  while  conceding  the  exclusive  jurisdiction 
of  the  spiritual  court  if  the  promise  had  been  by  parol,  gave  judg- 
ment for  the  plaintiff,  because  this  action  was  founded  wholly 
upon  the  deed.  In  another  case  it  is  said :  "In  debt  upon  a  contract 
the  plaintiff  shall  show  in  his  count  for  what  consideration  {cause) 
the  defendant  became  his  debtor.  Otherwise  in  debt  upon  a 
specialty  (obligation),  for  the  specialty  is  the  contract  in  itself." 

The  specialty  being  the  contract  itself,  the  loss  or  destruction 
of  the  instrument  would  logically  mean  the  loss  of  all  the  obligee's 
rights  against  the  obligor.  And  such  was  the  law.  "If  one  loses 
his  obligation,  he  loses  his  duty."  "Where  the  action  is  upon  a 
specialty,  if  the  specialty  is  lost,  the  whole  action  is  lost."  The 
injustice  of  allowing  the  obligor  to  profit  at  the  expense  of  the 
obligee  by  the  mere  accident  of  the  loss  of  the  obligation  is  obvious. 
But  this  ethical  consideration  was  irrelevant  in  a  court  of  common 
law.  It  did  finally  prevail  in  Chancery,  which,  in  the  seventeeth 
century,  upon  the  obligee's  affidavit  of  the  loss  or  destruction  of 
the  instrument,  compelled  the  obligor  to  perform  his  moral  duty. 
A  century  later  the  common-law  judges,  not  to  be  outdone  by  the 
chancellors,  decided,  by  an  act  of  judicial  legislation,  that  if  pro- 
fert  of  a  specialty  was  impossible  by  reason  of  its  loss  or  destruction, 
the  plaintiff  might  recover,  nevertheless,  upon  secondary  evidence 
of  its  contents. 


520  OBLIGATIONS 

Ames,  Cases  on  Bills  and  Notes,  II,  872-3. 

The  term  "specialty"  is  applied  to  an  instrument  which  becomes 
effective  by  the  mere  fact  of  its  formal  execution.  There  are  two 
classes  of  specialty  contracts  in  the  English  law, —  common  law 
specialties  and  mercantile  specialties.  The  first  class  includes 
bonds  and  covenants,  i.e.,  instruments  under  seal;  the  second 
class  includes  bills  and  notes,  and  policies  of  insurance,  and  possibly 
other  mercantile  instruments. 

There  is  a  prevalent  notion,  traceable  to  an  opinion  given  in  the 
House  of  Lords  in  1778,  in  the  case  of  Rann\.  Hughes,  7T.  R.  350, 
n.,  that  only  contracts  under  seal  can  be  specialties,  all  other  con- 
tracts, whether  written  or  oral,  being  merely  simple  contracts. 
The  fallacy  of  this  notion  is  easily  demonstrable  by  an  examination 
of  the  resemblances  between  bills  and  notes  and  instruments  under 
seal,  on  the  one  hand,  and  the  differences  between  bills  and  notes  and 
simple  contracts,  on  the  other  hand,  in  those  points  in  which  special- 
ties and  simple  contracts  most  strikingly  differ  from  each  other. 

The  points  of  resemblance  and  difference  may  be  considered 
under  the  following  heads,  namely, 

I .     None  but  parties  to  a  bill  can  be  parties  to  an  action  thereon . 
II.     A  bill  is  treated  as  a  specialty  in  pleading. 

III.  A  bill  operates  as  a  merger  of  a  pre-existing  claim. 

IV.  A  bill  requires  no  consideration. 

V.     The  law  of  mutual  assent,  as  applied  to  simple  contracts, 
is  inapplicable  to  a  bill. 
VI.     A  bill  is  not  within  the  purview  of  the  section  of  the  stat- 
ute of  frauds  which  relates  to  guaranties. 
VII.     A  bill  is  a  chattel. 
VIII.     A  bill  is  extinguished  in  the  same  mode  as  a  bond. 

Negotiable  Instruments  Law,  §  I. 

An  instrument  to  be  negotiable  must  conform  to  the  following 
requirements : — 

L     It  must  be  in  writing  and  signed  by  the  maker  or  drawer ; 

2.  Must  contain  an  unconditional  promise  or  order  to  pay  a  sum 

certain  in  money; 

3.  Must  be  payable  on  demand,  or  at  a  fixed  or  determinable 

future  time; 

4.  Must  be  payable  to  order  or  to  bearer;  and, 

5.  Where  the  instrument  is  addressed  to  a  drawee,  he  must  be 

named  or  otherwise  indicated  therein  with  reasonable  cer- 
tainty. 


CONTRACTS  .  521 

(ii)   Real  —  Debt,  Bailment} 

WaCHTER,  Pandekten,  II,  sec.  184,  C.  c.  Obligationes  quae  re  contrahunlur. 
These  are  contracts  in  which  one  is  bound  in  an  actionable  obligation  by  this 
fact,  that  he  has  received  something,  to  redeliver  what  he  has  received.  These 
contracts  are  mtitiium,  commodatum,  depositum,  pigniis.  In  the  three  last,  the 
concrete  things  received,  that  is,  the  species,  are  to  be  redelivered  at  the  proper 
time;  in  the  case  of  the  mutuiim,  on  the  other  hand,  not  the  concrete  things 
received,  but  satisfactory  things  of  the  same  kind  and  worth  and  in  like  quan- 
tity are  to  be  redelivered  tantundem.  In  these  cases,  the  actionable  oI>ligation 
arises  solely  from  this,  that  one  has  received  the  subject  of  the  obligation;  but 
it  arises  only  so  far  as  one  has  actually  received.  Therefore,  the  Romans  say 
the  obligation  is  contracted  re,  that  is,  the  actionable  obligation  is  here  founded 
and  its  beginning  determined  only  through  the  performance  received.  Hence 
we  call  these  contracts  real  contracts. 

Langdell,  Summary  of  Contracts,   §§99-101. 

99.  The  original  and  normal  mode  of  creating  a  debt  was  by  a 
loan  of  money.  In  that  transaction,  therefore,  the  true  nature  of 
a  debt  must  be  sought.  The  subject  of  a  loan  may  be  either  a 
specific  thing,  as  a  horse,  or  a  given  quantity  of  a  thing  which  con- 
sists in  number,  weight,  or  measure,  as  money,  sugar  or  wine.  In 
the  former  case,  it  is  of  the  essence  of  the  transaction  that  the  thing 
lent  continue  to  belong  to  the  lender;  otherwise  the  transaction 
is  not  a  loan.  In  the  latter  case,  the  thing  lent  may  (and  commonly 
does)  cease  to  belong  to  the  lender,  and  become  the  property  of 
the  borrower,  such  a  loan  commonly  being  an  absolute  transfer 
of  title  in  the  thing  lent  frotn  the  lender  to  the  borrower.  The 
reason  why  such  a  transfer  takes  place  is  obvious.  The  object  of 
borrowing  is  to  have  the  use  of  the  thing  borrowed;  but  the  use 
of  things  which  consist  in  number,  weight,  or  measure  commonly 
consumes  them;  and  this  use,  of  course,  the  borrower  cannot  ha\'e 
unless  he  owns  the  things  used.  When  such  things  are  lent,  there- 
fore, it  is  presumed  to  be  the  intention  of  both  parties,  in  the  absence 
of  evidence  to  the  contrary,  that  the  borrower  shall  acquire  the 
title  to  them.  But  why  then  call  the  transaction  a  loan?  The 
answer  is  that,  in  e\"ery  particular  except  the  transfer  of  title,  it  is 
a  loan;  that  the  title  is  transferred  for  the  purpose  of  making  the 
loan  effective  as  such,  and  because  it  is  immaterial  to  the  lender 
whether  he  recei^■es  back  the  identical  thing  lent,  or  something 
else  just  like  it.  Moreo^•er,  the  difference  between  a  loan  of  money, 
for  example,  and  a  loan  of  a  specific  article,  is  not  commonly  present 

^  Holmes,  Common  Law,  Lect.  V. 


522  •  OBLIGATIONS 

to  the  minds  of  the  parties;  the  lender  of  money  thinks  the  money 
lent  still  belongs  to  him,  and  that  the  borrower  has  acquired  only 
the  right  to  use  it  temporarily;  he  is  aware  that  the  borrower  is 
entitled  to  transfer  to  other  persons  the  identical  coins  lent,  and 
that  he  has  the  option  of  returning  to  him,  the  lender,  either  the 
identical  coins  borrowed,  or  others  like  them;  but  he  is  not  aware 
that  these  rights  in  the  borrower  are  inconsistent  wuth  his  retaining 
the  title  to  the  money  lent.  In  other  words,  he  supposes  (and, 
in  every  view  except  the  strict  legal  view,  he  is  right  in  supposing) 
that  he  may  own  a  gi\-en  sum  of  money  without  owning  any  specified 
coins;  and  that  the  only  substantial  difference  between  money  in  his 
own  coffer  and  money  due  to  him  is,  that  in  the  former  case  he  has 
the  possession,  while  in  the  latter  case  he  has  not. 

100.  A  debt,  therefore,  according  to  the  popular  conception  of 
the  term,  is  a  sum  of  money  belonging  to  one  person  (the  creditor), 
but  in  the  possession  of  another  (the  debtor).  There  is  also  much 
reason  to  believe  that  this  popular  conception  of  a  debt  was  adopted 
by  the  early  English  law,  at  least  for  certain  purposes.  Thus,  the 
action  of  debt  (which  was  established  for  the  sole  and  exclusive 
purpose  of  recovering  debts  of  every  description)  was  in  the  nature 
of  an  action  in  rem,  and  did  not  differ  in  substance  from  the  action 
of  detinue;  the  chief  difference  between  them  being  that  the  latter 
was  for  the  recovery  of  specified  things  belonging  to  the  plaintiff, 
the  former,  of  things  not  specified.  This  would  tend  to  the  con- 
clusion that  the  legal  mode  of  creating  a  debt  is  not  by  contract,  but 
by  grant,  i.e.  by  the  transfer  of  a  sum  of  money  from  the  debtor 
to  the  creditor  without  delivering  possession;  and  it  is  a  confirma- 
tion of  this  view  that  a  debt  clearly  may  be  so  created.  Thus,  an 
annuity,  which  is  simply  a  debt  pa^^able  in  equal  annual  install- 
ments, has  always  been  regularly  created  by  grant;  and  there  can 
be  no  doubt  that  an  ordinary  debt  may  be  created  by  a  mere  deed 
of  grant.  But  it  would  be  too  much  to  undertake  to  account  in 
this  way  for  all  debts  which  may  be  created  by  the  acts  of  parties; 
for,  in  the  first  place,  a  mere  covenant  (i.e.  a  promise  under  seal) 
to  pay  a  certain  sum  of  money  will  clearly  create  a  debt;  secondly, 
it  is  clear  enough  that  a  debt  cannot  be  created  by  grant  without 
a  deed ;  thirdly,  it  would  seem  to  be  straining  the  facts  to  say  that 
every  loan  of  money  is,  in  its  legal  operation,  an  exchange  of  the 
sum  lent  for  a  like  sum  to  be  paid  in  future  by  the  borrower,  and 
that  every  executed  sale  upon  credit  is  a  like  exchange  of  the  prop- 
erty sold  for  the  purchase-money  to  be  paid  at  a  future  day ;  fourthly. 


CONTRACTS  523 

there  has  never  been  supposed  to  be  any  grant  or  conveyance  on 

the  part  of  a  borrower  in  case  of  a  loan,  or  on  the  part  of  a  buyer 

in  case  of  a  sale,  but,  on  the  contrary,  it  has  always  been  supposed 

that  the  debt  in  both  cases  was  created  (in  the  only  other  pQssible 

mode,  namely)  by  contract.     Yet  this  latter  view  is  not  without 

its  difificulties.     That  a  debt  cannot  be  created  by  a  mere  binding 

promise  on  the  part  of  a  debtor,  w'ithout  the  receipt  by  him  from 

the  creditor  of  a  supposed  equivalent  for  the  debt,  is  clear:    First, 

until  the  introduction  of  the  action  of  assumpsit  (which  was  not 

.  earlier  than  the  latter  half  of  the  fifteenth  century)  such  promises 

were  not  enforceable  by  law  at  all.     Secondly,  an  action  of  debt 

will  never  lie  on  a  bilateral  contract  not  under  seal;    but  if  the 

promise  on  one  side  be  merely  for  the  payment  of  money,  an  action 

of  debt  will  generally  lie  to  recover  the  money  as  soon  as  the  promise 

on  the  other  side  is  performed.     For  example,  a  contract  of  sale 

will  never  support  an  action  of  debt  so  long  as  it  remains  executory 

on  both  sides,  but  as  soon  as  the  title  to  the  property  sold  passes  to 

the  buyer,  debt  will  lie  for  the  price.     It  is  clear,  therefore,  that 

it  is  the  transfer  of  the  property  for  a  certain  price,  and  not  the 

previous  executory  contract,  that  creates  the  debt.     The  transfer 

may  also  take  place  without  any  previous  executory    contract, 

and  yet  the  debt  arises  just  the  same.     Thirdly,  it  is  familiar  law 

that  an  action  of  debt  will  not  lie  on  a  unilateral  promise  to  pay 

money   unless   the   promisor   has   received    an    equivalent.     For 

example,  w^hen  A  sells  goods  to  B  upon  credit,  and  in  consideration 

of  the  sale,  C  guarantees  the  payment  of  the  price,  an  action  of  debt 

will  not  lie  against  C.     The  result,  therefore,  is,  that  a  debt  cannot 

be  created  by  contract  unless  either  the  contract  is  under  seal  or 

the  debtor  has  received  an  equivalent,  commonly  termed  a  quid 

pro  quo.     But  w^hat  kind  of  contract  is  that  in  which  the  obligation 

arises  not  from  a  promise,  but  from  the  receipt  of  an  equivalent  for 

the  obligation  by  the  obligor  from  the  obligee?     Upon  examining 

the  two  classes  into  which  contracts  are  commonly  divided,  viz. 

those  under  seal  and  those  not  under  seal,  it  will  be  seen  that  the 

obligation  arises  in  the  former  from  the  performance  of  certain 

acts  prescribed  by  law,  viz.  reducing  the  promise  to  writing,  sealing 

the  writing,  and  delivering  it;  while  in  the  latter,  it  generally  arises 

from  a  promise  made  and  accepted,  i.e.  from  an  exercise  of  will 

on  the  part  of  the  promisor  and  the  promisee,  the  law  imposing 

only  the  condition  that  there  shall  be  some  consideration  for  the 

'promise.     According  to  the  nomenclature  employed  by  w'riters  on 


524  OBLIGATIONS 

the  civil  law,  the  former  are  formal  contracts,  while  the  latter  are 
consensual  contracts.  This  distinction  existed  from  the  earliest 
times  among  the  Romans,  who  allowed  certain  specified  contracts 
(only,  four  in  all)  to  be  made  by  mere  consent,  but  for  all  others 
required  some  one  of  three  prescribed  forms.  One  of  these  forms 
consisted  in  the  delivery  of  some  inovable  thing  by  the  promisee  to 
the  promisor.  When  this  was  done  with  the  mutual  understanding 
that  either  the  specific  thing  delivered  or  (in  case  of  things  which 
consisted  in  number,  weight,  or  measure)  something  else  like  it 
should  be  returned,  an  obligation  to  make  such  return  arose  im- 
mediately upon  the  delivery.  As  the  contract  arose  from  the 
delivery  of  a  thing  (re),  it  was  called  a  real  contract.  There  were 
four  of  these  contracts  from  the  earliest  times;  namely,  a  loan  of 
money  or  other  thing  consisting  of  number,  weight,  or  measure 
(mutuum),  a  gratuitous  loan  of  specific  things  {commodatum) ,  a 
delivery  of  specific  things  for  safe  keeping  {depositum),  and  a  pawn 
or  pledge  (pigmis).  At  a  later  period,  this  species  of  contracts  was 
so  extended  as  to  embrace  any  transaction  which  consisted  in  giving 
or  doing  on  one  side,  with  the  mutual  understanding  that  some 
specified  thing  should  be  given  or  done  on  the  other  side  in  exchange. 
101.  There  can  be  little  doubt  that  the  Roman  law  in  regard 
to  real  contracts  was  adopted  by  the  English  law  at  a  very  early 
period,  at  least  so  far  as  the  latter  law  provided  a  remedy  for 
enforcing  such  contracts;  and  whenever  the  giving  or  doing  on  one 
side  created  an  obligation  on  the  other  side  to  pay  a  definite  sum  of 
money,  the  action  of  debt  not  only  furnished  an  appropriate  means 
for  enforcing  the  obligation,  but  it  was  for  that  express  purpose 
that  the  action  was  established.  The  testimony  of  the  early 
writers  is  very  explicit  upon  this  subject.  Thus,  Glanville  enumer- 
ates five  contracts,  all  of  Roman  origin,  as  creating  debts.  Three 
of  these  were  the  real  contracts  of  miUuum,  commodatum,  and 
depositum;  the  other  two  were  sale  (venditio)  and  letting  for  hire 
(locatio),  meaning  a  sale  or  letting  which  had  been  executed  by  a 
transfer  of  the  thing  sold  or  let.  These  latter  were  not  regarded 
as  real  contracts  among  the  Romans,  for  the  reason  that  they 
were  binding  as  consensual  contracts,  though  wholly  executory; 
but,  as  they  were  not  binding  by  the  English  law  while  executory, 
they  were  very  properly  classed  by  Glanville  among  real  con- 
tracts when  executed  by  a  transfer  of  the  property.  Bracton,  who 
in  this  respect  is  followed  by  Fleta,  and  in  substance  by  Britton, 
follows   the    Institutes    of    Justinian    almost    literally    upon   the* 


CONTRACTS  525 

subject  of  real  contracts;  and  though  the  closeness  of  his  copying  may 
excite  some  suspicion  as  to  the  trustworthiness  of  his  testimony, 
yet  what  he  says  upon  real  contracts  is  quoted  as  authority  by  Lord 
Holt,  in  Coggs  V.  Bernard.  It  may  be  added  that  Britton  and 
Fleta,  as  well  as  Glanville,  treat  of  real  contracts  under  the  titles 
"debt"  and  "action  of  debt." 

Coggs  v.  Bernard,  King's  Bench,  1703  (2  Lord  Raym.  909). 

Holt,  C.  J. :  The  case  is  shortly  this.  This  defendant  undertakes 
to  remove  goods  from  one  cellar  to  another,  and  there  lay  them  down 
safely,  and  he  managed  them  so  negligently,  that  for  want  of  care 
in  him  some  of  the  goods  were  spoiled.  Upon  not  guilty  pleaded, 
there  has  been  a  verdict  for  the  plaintiff,  and  that  upon  full  evi- 
dence, the  cause  being  tried  before  me  at  Guildhall.  There  has 
been  a  motion  in  arrest  of  judgment,  that  the  declaration  is  insuffi- 
cient, because  the  defendant  is  neither  laid  to  be  a  common  por- 
ter, nor  that  he  is  to  have  any  reward  for  his  labor.  So  that  the 
defendant  is  not  chargeable  by  his  trade,  and  a  private  person 
cannot  be  charged  in  an  action  without  a  reward. 

I  have  had  a  great  consideration  of  this  case,  and  because  some 
of  the  books  make  the  action  lie  upon  the  reward,  and  some  upon 
the  promise,  at  first  I  made  a  great  question,  whether  this  declara- 
tion was  good.  But  upon  consideration,  as  this  declaration  is,  I 
think  the  action  will  well  lie.  In  order  to  shew  the  grounds, 
upon  which  a  man  shall  be  charged  with  goods  put  into  his  custody, 
I  must  shew  the  several  sorts  of  bailments.  And  there  are  six 
sorts  of  bailments.  The  first  sort  of  bailment  is,  a  bare  naked 
bailment  of  goods,  delivered  by  one  man  to  another  to  keep  for 
the  use  of  the  bailor;  and  this  I  call  a  depositum,  and  it  is  that 
sort  of  bailment  which  is  mentioned  in  Soiithcotes  case.  The  second 
sort  is,  when  goods  or  chattels  that  are  useful,  are  lent  to  a  friend, 
gratis,  to  be  used  by  him;  and  this  is  called  commodakcm,  because 
the  thing  is  to  be  restored  in  specie.  The  third  sort  is,  when  goods 
are  left  with  the  bailee  to  be  used  by  him  for  hire;  this  is  called 
locatio  et  conductio,  and  the  lender  is  called  Iccalor,  and  the 
borrower  conductor.  The  fourth  sort  is,  when  goods  or  chattels 
are  delivered  to  another  as  a  pawn,  to  be  a  security  to  him  for  money 
borrowed  of  him  by  the  bailor;  and  this  is  called  in  Latin  vadium, 
and  in  English  a  pawn  or  a  pledge.  The  fifth  sort  is  when  goods 
or  chattels  are  delivered  to  be  carried,  or  something  is  to  be  done 
about  them  for  a  reward  to  be  paid  by  the  person  who  delivers 


526  OBLIGATIONS 

them  to  the  bailee,  who  is  to  do  the  thing  about  them.  The  sixth 
sort  is  when  there  is  a  deHvery  of  goods  or  chattels  to  somebody, 
who  is  to  carry  them,  or  do  something  about  them  gratis,  with- 
out any  reward  for  such  his  work  or  carriage,  which  is  this  present 
case.  I  mention  these  things,  not  so  much  that  they  are  all  of 
them  so  necessary  in  order  to  maintain  the  proposition  which  is 
to  be  proved,  as  to  clear  the  reason  of  the  obligation,  which  is 
upon  persons  in  cases  of  trust. 

As  to  the  first  sort,  where  a  man  takes  goods  in  his  custody  to 
keep  for  the  use  of  the  bailor,  I  shall  consider  for  what  things  such 
a  bailee  is  answerable.  He  is  not  answerable,  if  they  are  stole 
without  any  fault  in  him,  neither  will  a  common  neglect  make  him 
chargeable,  but  he  must  be  guilty  of  some  gross  neglect.  There 
is,  I  confess,  a  great  authority  against  me,  where  it  is  held,  that  a 
general  delivery  will  charge  the  bailee  to  answer  for  the  goods  if 
they  are  stolen,  unless  the  goods  are  specially  accepted,  to  keep  them 
only  as  you  will  keep  your  own.  But  my  Lord  Coke  has  improved 
the  case  in  his  report  of  it,  for  he  will  have  it,  that  there  is  no 
difference  between  a  special  acceptance  to  keep  safely,  and  an 
acceptance  generally  to  keep.  But  there  is  no  reason  nor  justice 
in  such  a  case  of  a  general  bailment,  and  where  the  bailee  is  not  to 
have  any  reward,  but  keeps  the  goods  merely  for  the  use  of  the 
bailor,  to  charge  him  without  some  default  in  him.  For  if  he  keeps 
the  goods  in  such  a  case  with  an  ordinary  care,  he  has  performed 
the  trust  reposed  in  him.  But  according  to  this  doctrine  the  bailee 
must  answer  for  the  wrongs  of  other  people,  which  he  is  not,  nor 
cannot  be,  sufficiently  armed  against.  If  the  law  be  so,  there 
must  be  some  just  and  honest  reason  for  it,  or  else  some  universal 
settled  rule  of  law,  upon  which  it  is  grounded ;  and  therefore  it  is 
incumbent  upon  them  that  advance  this  doctrine,  to  shew  an  undis- 
turbed rule  and  practice  of  the  law  according  to  this  position.  But 
to  shew  that  the  tenor  of  the  law  was  always  otherwise,  I  shall  give 
a  history  of  the  authorities  in  the  books  in  this  matter,  and  by 
them  shew,  that  there  never  was  any  such  resolution  given  before 
Soiithcotes  case.  The  29  Ass.  28,  is  the  first  case  in  the  books  upon 
that  learning,  and  there  the  opinion  is,  that  the  bailee  is  not  charge- 
able, if  the  goods  are  stole.  As  for  8  Edw.  2,  Fitz.  Detinue  59, 
where  goods  were  locked  in.  a  chest,  and  left  with  the  bailee,  and 
the  owner  took  away  the  key,  and  the  goods  were  stolen,  and  it  was 
held  that  the  bailee  should  not  answer  for  the  goods.  That  case 
they  say  differs,  because  the  bailor  did  not  trust  the  bailee  with 


CONTRACTS  527 

them.  But  I  cannot  see  the  reason  of  that  difference,  nor  why  the 
bailee  should  not  be  charged  with  goods  in  a  chest,  as  well  as  with 
goods  out  of  a  chest.  For  the  bailee  has  as  little  power  over  them, 
when  they  are  out  of  a  chest,  as  to  any  benefit  he  might  have  by 
them,  as  when  they  are  in  a  chest;  and  he  has  as  great  power  to 
defend  them  in  one  case  as  in  the  other.  The  case  of  9  Edw.  4, 
40  b.  was  but  a  debate  at  bar.  For  Ddnby  was  but  a  counsel  then, 
though  he  had  been  Chief  Justice  in  the  beginning  of  Ed.  4,  yet 
he  was  removed,  and  restored  again  upon  the  restitution  of  Hen.  6, 
as  appears  by  Dugdale's  Chronica  Series.  So  that  what  he  said 
cannot  be  taken  to  be  any  authority,  for  he  spoke  only  for  his  client ; 
and  Genney  for  his  client  said  the  contrary.  The  case  in  3  Hen. 
7,  4,  is  but  a  sudden  opinion  and  that  but  by  half  the  Court;  and 
yet  that  is  the  only  ground  for  this  opinion  of  my  Lord  Coke, 
which  besides  he  has  improved.  But  the  practice  has  always  been 
at  Guildhall,  to  disallow  that  to  be  a  sufficient  evidence,  to  charge 
the  bailee.  And  it  was  practised  so  before  my  time,  all  Chief 
Justice  Pemberton's  time,  and  ever  since,  against  the  opinion  of 
that  case.  When  I  read  Southcote' s  case  heretofore,  I  was  not  so 
discerning  as  my  brother  Powys  tells  us  he  was,  to  disallow  that  case 
at  first,  and  came  not  to  be  of  this  opinion,  till  I  had  well  con- 
sidered and  digested  that  matter.  Though  I  must  confess  reason 
is  strong  against  the  case  to  charge  a  man  for  doing  such  a  friendly 
act  for  his  friend,  but  so  far  is  the  law  from  being  so  unreasonable, 
that  such  a  bailee  is  the  least  chargeable  for  neglect  of  any.  For 
if  he  keeps  the  goods  bailed  to  him,  but  as  he  keeps  his  own,  though 
he  keeps  his  own  but  negligently,  yet  he  is  not  chargeable  for  them, 
for  the  keeping  them  as  he  keeps  his  own,  is  an  argument  of  his 
honesty.  A  fortiori  he  shall  not  be  charged,  where  they  are  stolen 
without  any  neglect  in  him.  Agreeable  to  this  Bracton,  lib.  3, 
c.  2,  99  b.  .  .  .  As  suppose  the  bailee  is  an  idle,  careless,  drunken 
fellow,  and  comes  home  drunk,  and  leaves  all  his  doors  open,  and 
by  reason  thereof  the  goods  happen  to  be  stolen  with  his  own;  yet 
he  shall  not  be  charged,  because  it  is  the  bailor's  own  folly  to  trust 
such  an  idle  fellow.  So  that  this  sort  of  bailee  is  the  least  respon- 
sible for  neglects,  and  under  the  least  obligation  of  any  one,  being 
bound  to  no  other  care  of  the  bailed  goods,  than  he  takes  of  his  own. 
This  Bracton  I  have  cited  is,  I  confess,  an  old  author,  but  in  this 
his  doctrine  is  agreeable  to  reason,  and  to  what  the  law  is  in  other 
countries.  The  civil  law  is  so,  as  you  have  it  in  Justinian's  Inst. 
lib.  3,  tit.  15.     There  the  law  goes  farther.  ...     So  that  a  bailee 


528  OBLIGATIONS 

is  not  chargeable  without  an  apparent  gross  neglect.  And  if  there 
is  such  a  gross  neglect,  it  is  looked  upon  as  an  evidence  of  fraud. 
Nay,  suppose  the  bailee  undertakes  safely  and  securely  to  keep 
the  goods,  in  express  words,  even  that  won't  charge  him  with  all 
sorts  of  neglects.  For  if  such  a  promise  were  put  into  writing,  it 
would  not  charge  so  far,  even  then.  Hob.  34,  a  covenant,  that  the 
covenantee  shall  have,  occupy  and  enjoy  certain  lands,  does  not 
bind  against  the  acts  of  wrong  doers.  3  Cro.  214,  ace.  2  Cro.  425, 
ace.  upon  a  promise  for  quiet  enjoyment.  And  if  a  promise  will 
not  charge  a  man  against  wrong  doers,  when  put  in  writing,  it  is 
hard  it  should  do  it  more  so,  when  spoken.  Doct.  &  Stud.  130,  is 
in  point,  that  though  a  bailee  do  promise  to  re-deliver  goods  safely, 
yet  if  he  have  nothing  for  the  keeping  of  them,  he  will  not  be 
answerable  for  the  acts  of  a  wrong  doer.  So  that  there  is  neither 
sufficient  reason  nor  authority  to  support  the  opinion  in  South- 
cote  s  case;  if  the  bailee  be  guilty  of  gross  negligence,  he  will  be 
chargeable,  but  not  for  any  ordinary  neglect.  As  to  the  second 
sort  of  bailment,  viz.,  commodatum  or  lending  gratis,  the  borrower 
is  bound  to  the  strictest  care  and  diligence,  to  keep  the  goods,  so 
as  to  restore  them  back  again  to  the  lender,  because  the  bailee  has 
a  benefit  by  the  use  of  them,  so  as  if  the  bailee  be  guilty  of  the 
least  neglect,  he  will  be  answerable;  as  if  a  man  should  lend  another 
a  horse,  to  go  westward,  or  for  a  month ;  if  the  bailee  go  northward, 
or  keep  the  horse  above  a  month,  if  any  accident  happen  to  the  horse 
in  the  northern  journey,  or  after  the  expiration  of  the  month,  the 
bailee  will  be  chargeable;  because  he  has  made  use  of  the  horse 
contrary  to  the  trust  he  was  lent  to  him  under,  and  it  may  be  if  the 
horse  had  been  used  no  otherwise  than  he  was  lent,  that  accident 
would  not  have  befallen  him.  This  is  mentioned  in  Bracton.  .  .  . 
I  cite  this  author,  though  I  confess  he  is  an  old  one,  because  his 
opinion  is  reasonable,  and  very  much  to  my  present  purpose,  and 
there  is  no  authority  in  the  law  to  the  contrary.  But  if  the  bailee 
put  this  horse  in  his  stable,  and  he  were  stolen  from  thence,  the 
bailee  shall  not  be  answerable  for  him.  But  if  he  or  his  servant 
leave  the  house  or  stable  doors  open,  and  the  thieves  take  the 
opportunity  of  that,  and  steal  the  horse,  he  will  be  chargeable; 
because  the  neglect  gave  the  thieves  the  occasion  to  steal  the  horse. 
Bracton  says,  the  bailee  must  use  the  utmost  care,  but  yet  he  shall 
not  be  chargeable,  where  there  is  such  a  force  as  he  cannot  resist. 

As  to  the  third  sort  of  bailment,  scilicet  locatio  or  lending  for 
hire,  in  this  case  the  bailee  is  also  bound  to  take  the  utmost  care 


CONTRACTS  529 

and  to  return  the  goods,  when  the  time  of  the  hiring  is  expired. 
And  here  again  I  must  recur  to  my  old  author,  fol.  62  b.  ,  .  . 
From  whence  it  appears,  that  if  goods  are  let  out  for  a  reward,  the 
hirer  is  bound  to  the  utmost  diligence,  such  as  the  most  diligent 
father  of  a  family  uses;  and  if  he  uses  that,  he  shall  be  discharged. 
But  every  man,  how  diligent  soever  he  be,  being  liable  to  the  acci- 
dent of  robbers,  though  a  diligent  man  is  not  so  liable  as  a  careless 
man,  the  bailee  shall  not  be  answerable  in  this  case,  if  the  goods 
are  stolen. 

As  to  the  fourth  sort  of  bailment,  viz.,  vadium  or  a  pawn,  in  this 
I  shall  consider  two  things;  first,  what  property  the  pawnee  has  in 
the  pawn  or  pledge,  and  secondly  for  what  neglects  he  shall  make 
satisfaction.  As  to  the  first,  he  has  a  special  property,  for  the 
pawn  is  a  securing  to  the  pawnee,  that  he  shall  be  repaid  his  debt, 
and  to  compel  the  pawner  to  pay  him.  But  if  the  pawn  be  such  as 
it  will  be  the  worse  for  using,  the  pawnee  cannot  use  it,  as  cloaths, 
&c.,  but  if  it  be  such,  as  will  be  never  the  worse,  as  if  jewels  for  the 
purpose  were  pawn'd  to  a  lady,  she  might  use  them.  But  then  she 
must  do  it  at  her  peril,  for  whereas,  if  she  keeps  them  lock'd  up  in 
her  cabinet,  if  her  cabinet  should  be  broke  open,  and  the  jewels 
taken  from  thence,  she  would  be  excused ;  if  she  wears  them  abroad, 
and  is  there  robb'd  of  them,  she  will  be  answerable.  And  the  rea- 
son is,  because  the  pawn  is  in  the  nature  of  a  deposit,  and  as  such 
is  not  liable  to  be  used.  And  to  this  effect  is  Ow.  123.  But  if  the 
pawn  be  of  such  a  nature,  as  the  pawnee  is  at  any  charge  about 
the  thing  pawn'd,  to  maintain  it,  as  a  horse,  cow,  &c.,  then  the 
pawnee  may  use  the  horse  in  a  reasonable  manner,  or  milk  the  cow, 
&c.,  in  recompense  for  the  meat.  As  to  the  second  point  Bracton 
99  b.  gives  you  the  answer.  ...  In  effect,  if  a  creditor  takes  a 
pawn,  he  is  bound  to  restore  it  upon  the  payment  of  the  debt;  but 
yet  it  is  sufficient,  if  the  pawnee  use  true  diligence,  and  he  will 
be  indemnified  in  so  doing,  and  notwithstanding  the  loss,  yet  he 
shall  resort  to  the  pawnor  for  his  debt.  Agreeable  to  this  is  29 
Ass.  28,  and  Southcote  s  case  is.  But  indeed  the  reason  given  in 
Southcote  s  case  is,  because  the  pawnee  has  a  special  property  in  the 
pawn.  But  that  is  not  the  reason  of  the  case;  and  there  is  another 
reason  given  for  it  in  the  Book  of  Assize,  which  is  indeed  the  true 
reason  of  all  these  cases,  that  the  law  requires  nothing  extraordi- 
nary of  the  pawnee,  but  only  that  he  shall  use  an  ordinary  care  for 
restoring  the  goods.  But  indeed,  if  the  money  for  which  the  goods 
were  pawn'd,  be  tender'd  to  the  pawnee  before  they  are  lost,  then 


530  OBLIGATIONS 

the  pawnee  shall  be  answerable  for  them;  because  the  pawnee,  by 
detaining  them  after  the  tender  of  the  money,  is  a  wrong  doer,  and 
it  is  a  wrongful  detainer  of  the  goods,  and  the  special  property  of 
the  pawnee  is  determined.  And  a  man  that  keeps  goods  by  wrong, 
must  be  answerable  for  them  at  all  events,  for  the  detaining  of 
them  by  him,  is  the  reason  of  the  loss.  Upon  the  same  difference 
as  the  law  is  in  relation  to  pawns,  it  will  be  found  to  stand  in 
relation  to  goods  found. 

As  to  the  fifth  sort  of  bailment,  viz.  a  delivery  to  carry  or  other- 
wise manage,  for  a  reward  to  be  paid  to  the  bailee,  those  cases 
are  of  two  sorts;  either  a  delivery  to  one  that  exercises  a  publick 
employment,  or  a  delivery  to  a  private  person.  First,  if  it  be  to  a 
person  of  the  first  sort,  and  he  is  to  have  a  reward,  he  is  bound  to 
answer  for  the  goods  at  all  events.  And  this  is  the  case  of  the  com- 
mon carrier,  common  hoyman,  master  of  a  ship,  etc.,  which  case 
of  a  master  of  a  ship  was  first  adjudged  26  Car.  2,  in  the  case  of  Mors 
v.  Slew,  Raym.  220.  1  Vent.  190,  238.  The  law  charges  this  person 
thus  intrusted  to  carry  goods,  against  all  events  but  acts  of  God, 
and  of  the  enemies  of  the  King.  For  though  the  force  be  never  so 
great,  as  if  an  irresistible  multitude  of  people  should  rob  him, 
nevertheless  he  is  chargeable.  And  this  is  a  politick  establishment, 
contrived  by  the  policy  of  the  law,  for  the  safety  of  all  persons,  the 
necessity  of  whose  affairs  oblige  them  to  trust  these  sorts  of  persons, 
that  they  may  be  safe  in  their  ways  of  dealing;  for  else  these  car- 
riers might  have  an  opportunity  of  undoing  all  persons  that  had 
any  dealings  with  them,  by  combining  with  thieves,  etc.,  and  yet 
doing  it  in  such  a  clandestine  manner,  as  would  not  be  possible 
to  be  discovered.  And  this  is  the  reason  the  law  is  founded  upon  in 
that  point.  The  second  sort  are  bailies,  factors  and  such  like.  And 
though  a  bailee  is  to  have  a  reward  for  his  management,  yet  he  is 
only  to  do  the  best  he  can.  And  if  he  be  robbed,  etc.,  it  is  a  good 
account.  And  the  reason  of  his  being  a  servant  is  not  the  thing; 
for  he  is  at  a  distance  from  his  master,  and  acts  at  discretion, 
receiving  rents  and  selling  corn,  etc.  And  yet  if  he  receives  his 
master's  money,  and  keeps  it  lock'd  up  with  a  reasonable  care,  he 
shall  not  be  answerable  for  it,  though  it  be  stolen.  But  yet  this 
servant  is  not  a  domcstick  servant,  nor  under  his  master's  immediate 
care.  But  the  true  reason  of  the  case  is,  it  would  be  unreasonable 
to  charge  him  with  a  trust,  farther  than  the  nature  of  the  thing  puts 
it  in  his  power  to  perform  it.  But  it  is  allowed  in  the  other  cases, 
by  reason  of  the  necessity  of  the  thing.    The  same  law  of  a  factor. 


CONTRACTS  531 

As  to  the  sixth  sort  of  bailment,  it  is  to  be  taken,  that  the  bailee 
is  to  have  no  reward  for  his  pains,  but  yet  that  by  his  ill  manage- 
ment the  goods  are  spoiled.  Secondly,  it  is  to  be  understood,  that 
there  was  a  neglect  in  the  management.  But  thirdly,  if  it  had  ap- 
peared that  the  mischief  happened  by  any  person  that  met  the  cart 
in  the  way,  the  bailee  had  not  been  chargeable.  As  if  a  drunken 
man  had  come  by  in  the  streets,  and  had  pierced  the  cask  of  Ijrandy ; 
in  this  case  the  defendant  had  not  been  answerable  for  it,  because 
he  was  to  have  nothing  for  his  pains.  Then  the  bailee,  having 
undertaken  to  manage  the  goods,  and  having  managed  them  ill, 
and  so  by  his  neglect  a  damage  has  happened  to  the  bailor,  which 
is  the  case  in  question,  what  will  you  call  this?  In  Bracton,  lib. 3, 
100,  it  is  called  mandatum.  It  is  an  obligation  which  arises  ex 
mandato.  It  is  what  we  call  in  English  an  acting  by  commission. 
And  if  a  man  acts  by  commission  for  another  gratis,  and  in  the 
executing  his  commission  behaves  himself  negligently,  he  is  an- 
swerable. .  .  .  This  undertaking  obliges  the  undertaker  to  a 
diligent  management.  ...  I  don't  find  this  word  in  any  other 
author  of  our  law,  besides  in  this  place  in  Bracton,  which  is  a  full 
authority,  if  it  be  not  thought  too  old.  But  it  is  supported  by  good 
reason  and  authority. 

The  reasons  are,  first,  because  in  such  a  case,  a  neglect  is  a  de- 
ceipt  to  the  bailor.  For  when  he  intrusts  the  bailee  upon  his  under- 
taking to  be  careful,  he  has  put  a  fraud  upon  the  plaintilT  by  being 
negligent,  his  pretence  of  care  being  the  persuasion  that  induced 
the  plaintifT  to  trust  him.  And  a  breach  of  a  trust  undertaken  vol- 
untarily will  be  a  good  ground  for  an  action.  1  Roll.  Abr.  10.  2 
Hen.  7,  11,  a  strong  case  to  this  matter.  There,  the  case  was  an 
action  against  a  man,  who  had  undertaken  to  keep  an  hundred 
sheep,  for  letting  them  be  drown'd  by  his  default.  And  there  the 
reason  of  the  judgment  is  given,  because  when  the  party  has  taken 
upon  him  to  keep  the  sheep,  and  after  suffers  them  to  perish  in 
his  default;  in  as  much  as  he  has  taken  and  executed  his  bargain, 
and  has  them  in  his  custody,  if  after  he  does  not  look  to  them,  an 
action  lies.  For  here  is  his  own  act,  \iz.  his  agreement  and  promise, 
and  that  after  broke  of  his  side,  that  shall  give  a  sufficient  cause 
of  action. 

But,  secondly,  it  is  objected,  that  there  is  no  consideration  to 
ground  this  promise  upon,  and  therefore  the  undertaking  is  but 
nudum  pactum.  But  to  this  I  answer,  that  the  owner's  trusting 
him  with  the  goods  is  a  sufhcient  consideration  to  oblige  him  to  a 


532  OBLIGATIONS 

careful  management.  Indeed,  if  the  agreement  had  been  executory, 
to  carry  these  brandies  from  the  one  place  to  the  other  such  a  day, 
the  defendant  had  not  been  bound  to  carry  them.  But  this  is  a 
different  case,  for  assumpsit  does  not  only  signify  a  future  agree- 
ment, but  in  such  a  case  as  this,  it  signifies  an  actual  entry  upon 
the  thing,  and  taking  the  trust  upon  himself.  And  if  a  man  will  do 
that,  and  miscarries  in  the  performance  of  his  trust,  an  action  will 
lie  against  him  for  that,  though  no  body  could  have  compelled  him 
to  do  the  thing.  The  19  Hen.  6,  49,  and  the  other  cases  cited  by  my 
brothers,  shew  that  this  is  the  difference.  But  in  the  11  Hen.  4,  33, 
this  difference  is  clearly  put,  and  that  is  the  only  case  concerning 
this  matter,  which  has  not  been  cited  by  my  brothers.  There,  the 
action  was  brought  against  a  carpenter,  for  that  he  had  undertaken 
to  build  the  plaintiff  a  house  within  such  a  time,  and  had  not  done 
it,  and  it  was  adjudged  the  action  would  not  lie.  But  there  the 
question  was  put  to  the  Court,  what  if  he  had  built  the  house  un- 
skilfully, and  it  is  agreed  in  that  case  an  action  would  have  lain. 
There  has  been  a  question  made,  if  I  deliver  goods  to  A.  and 
in  consideration  thereof  he  promise  to  re-deliver  them,  if  an  action 
will  lie  for  not  re-delivering  them;  and  in  Yelv.  4,  judgment  was 
given  that  the  action  would  lie.  But  that  judgment  was  after- 
wards revers'd,  and  according  to  that  reversal,  there  was  judgment 
afterwards  entered  for  the  defendant  in  the  like  case.  Yelv.  128. 
But  those  cases  were  grumbled  at,  and  the  reversal  of  that  judgment 
in  Yelv.  4,  was  said  by  the  Judges  to  be  a  bad  resolution,  and  the 
contrary  to  that  reversal  was  afterwards  most  solemnly  adjudged 
in  2  Cro.  667,  Tr.  21  Jac.  1,  in  the  King's  Bench,  and  that  judgment 
affirmed  upon  a  writ  of  error.  And  yet  there  is  no  benefit  to  the 
defendant,  nor  no  consideration  in  that  case,  but  the  having  the 
money  in  his  possession,  and  being  trusted  with  it,  and  yet  that 
was  held  to  be  a  good  consideration.  And  so  a  bare  being  trusted 
with  another  man's  goods,  must  be  taken  to  be  a  sufficient  consid- 
eration, if  the  bailee  once  enter  upon  the  trust,  and  take  the  goods 
into  his  possession.  The  declaration  in  the  case  of  Mors  v.  Slew 
was  drawn  by  the  greatest  drawer  in  England  in  that  time,  and  in 
that  declaration,  as  it  was  always  in  all  such  cases,  it  was  thought 
most  prudent  to  put  in,  that  a  reward  was  to  be  paid  for  the  car- 
riage. And  so  it  has  been  usual  to  put  it  in  the  writ,  where  the 
suit  is  by  original.  I  have  said  thus  much  in  this  case,  because  it 
is  of  great  consequence,  that  the  law  should  be  settled  in  this  point, 
but  I  don't  know  whether  I  may  have  settled  it,  or  may  not  rather 


CONTRACTS  533 

have  unsettled  it.  But  however  that  happen,  I  have  stirred  these 
points,  which  wiser  heads  in  time  may  settle.  And  judgment  was 
given  for  the  plaintiff. 

(iii)    Simple. 

All  contracts  other  than  those  above  discussed  are  called  simple  contracts  and 
at  common  law  are  actionable  only  in  an  action  of  assumpsit.  They  are  made 
up  of  two  elements,  offer  and  acceptance.  The  acceptance  may  be  in  the  form 
of  a  counter  promise  or  in  the  form  of  some  other  act  in  exchange  for  which  the 
offerer  proposes  to  gixe  his  promise.  Accordingly,  simple  contracts  are  of  two 
kinds,  (1)  unilateral,  where  the  acceptance  is  some  act  other  than  a  promise  and 
hence  there  is  a  promise  upon  one  side  only;  (2)  bilateral,  where  the  acceptance 
is  itself  a  promise  and  hence  there  is  a  promise  upon  each  side.  The  act  in  the 
case  of  a  unilateral  contract  or  the  promise  of  the  other  party  in  the  case  of  a 
bilateral  contract  —  in  other  words,  that  which  is  given  in  exchange  for  the 
other's  promise,  whereby  it  becomes  binding  legally  —  is  called  "consideration." 
It  must  be  a  detriment  to  the  promisee,  a  doing  by  him  of  something  which  he  is 
not  legally  bound  to  do. 

Harriman,  Contracts,  (2  ed.)  §§  646-652. 

Sec.  646.  The  Modern  Theory  of  Simple  Contracts.  —  While 
no  one  theory  of  contract  will  apply  alike  to  formal  and  to  simple 
contracts  the  courts  have  worked  out  a  theory  of  simple  contracts 
which  is  reasonably  consistent  and  intelligible.  This  theory  is 
that  a  promise  creates  obligation  when  it  calls  for  certain  action 
by  the  promisee,  and  when  the  promisee  takes  such  action  in 
reliance  upon  the  promise.  This  may  be  called  the  consideration 
theory  of  contract,  and  has  its  origin  in  the  development  of  the 
action  of  assumpsit  from  the  action  of  deceit  for  breach  of  a  parol 
promise.  Another  theory,  having  the  same  origin,  is  that  the 
promise  becomes  binding  though  it  calls  for  no  specific  action,  if 
the  promisee  acts  reasonably  in  reliance  upon  it.  This  may  be 
called  the  estoppel  theory.  It  differs  from  the  consideration  theory 
in  this  that  under  the  former  theory  the  action  which  the  promisee 
must  take  to  turn  the  promise  into  a  contract  is  marked  out  by  the 
promise  itself,  while  under  the  latter,  any  reasonable  action  by  the 
promisee  in  reliance  upon  the  promise  will  turn  the  promise  into 
a  contract.  The  close  connection  between  the  different  forms  of 
legal  obligation  called  simple  contract,  equitable  estoppel,  and  deceit 
is  clearly  apparent.  All  these  rest  upon  this  broad  ethical  principle, 
that  every  man  is  responsible  for  the  natural  consequences  of  his 
legal  acts.  If  then,  the  natural  consequence  of  A's  act  is  to  produce 
a  particular  impression  on  B's  mind,  in  consequence  of  which  B 


534  OBLIGATIONS 

naturally  does  a  certain  act,  A's  act  renders  him  responsible,  to 
some  extent  and  with  some  limitations  for  B's  act.  The  extent 
and  nature  of  such  responsibility  will  be  illustrated  by  the  following 
examples. 

Sec.  647.  Simple  Contract  —  The  Consideration  Theory. — 
A  says  to  B,  "I  will  give  }'ou  $100  for  your  horse."  This  statement 
of  A's  induces  B  to  believe  that  A  will  pay  him  $100  for  the  horse. 
Influenced  by  this  belief,  and  relying  on  A's  promise,  B  gives  his 
horse  to  A.  A  becomes  bound  to  pay  B  $100,  having  induced  B 
to  do  the  act  which  A's  promise  called  for,  and  thereby  becoming 
legally  responsible  for  the  promise. 

Sec.  648.  Equitable  Estoppel.  —  A  and  B  own  adjoining  lots. 
A  says  to  B,  "These  two  trees  mark  the  boundary  line  between  our 
lots."  The  trees  are  in  fact  on  A's  land.  A  induces  B  to  belie.ve 
that  the  trees  mark  the  true  boundary  line,  and  in  reliance  on  A's 
statement,  B  builds  a  house  which  is  partly  on  A's  land.  A  is 
estopped  to  deny  that  the  true  boundary  line  is  the  one  he  pointed 
out,  having  induced  B  to  act  in  reliance  on  his  statement.  To 
create  an  estoppel  of  this  character,  there  must  be  a  representation 
of  existing  fact. 

Sec.  649.  Simple  Contract  —  The  Estoppel  Theory.  —  A  prom- 
ises to  give  $100  to  the  First  Methodist  Church.  In  reliance  upon 
this  promise  the  church  buys  a  new  organ.  According  to  some 
courts,  this  action  of  the  church  makes  A's  promise  binding.  Such 
courts  call  the  action  of  the  church  the  consideration  for  A's  promise 
but  the  strict  definition  of  consideration  requires  that  it  should  be 
specifically  indicated  by  the  promise  itself.  The  reason  for  calling 
this  theory  the  estoppel  theory  of  contract  is  that  this  case  differs 
from  estoppel  only  in  one  particular,  viz.,  that  here  A's  act  is  a 
promise  instead  of  a  representation  of  fact. 

Sec.  650.  Deceit. —  A  represents  to  B  that  the  horse  which  he 
wishes  to  sell  B  is  sound.  B  is  induced  by  his  representation  to 
buy  the  horse.  A  is  liable  to  B  in  damages  for  the  injury  which  he 
has  sustained,  at  least  if  A  knew  that  his  representation  was  false. 

Sec.  651.  The  Consensual  Theory  of  Contracts.  —  While  the 
theory  of  simple  contract  in  our  law  is  essentially  a  theory  of 
responsibility  for  an  act  which  has  influenced  the  conduct  of  the 
promisee,  another  theory  has  found  some  place  in  judicial  opinion, 
and  has  been  advanced  by  more  than  one  text-writer  as  the  only 
rational  explanation  of  contractual  obligation.  That  is  the  con- 
sensual theory,  which  treats  contractual  obligation  as  due  simply 


CONTRACTS  535 

to  the  agreement  of  the  parties  to  the  contract.  It  is  obvious,  of 
course,  that  in  almost  every  contract  there  is  an  agreement  and  a 
meeting  of  minds.  The  real  question,  however,  is  not  whether 
there  is  an  agreement,  but  whether  the  fact  of  agreement  creates  or 
is  essential  to  the  obligation.  Now  an  examination  of  the  authori- 
ties shows  that  a  formal  contract  is  enforced  because  of  the  weight 
which  the  law  attaches  to  the  act  of  sealing  and  deli\cring;  while 
a  simple  promise  is  enforced  only  when  the  promisee  has  acted  in 
reliance  upon  it.  On  the  other  hand,  some  essential  element  of 
agreement  may  be  lacking,  and  yet  there  may  be  a  contract.  Fraud 
and  duress,  for  example,  are  inconsistent  with  the  idea  of  agreement. 
Yet  a  contract  obtained  by  fraud  or  duress  is  not  void,  but  valid 
until  rescinded. 

Sec.  652.  Summary  of  the  Principles  Governing  Contractual 
Obligation  at  the  Present  Day.  —  A  proper  understanding  of  the 
modem  law  of  contracts  therefore  requires  a  recognition  of  the 
following  principls: 

First,  there  is  no  general  theory  of  contracts  to  be  induced  from 
the  English  and  American  decisions. 

Second,  there  is  a  theory  of  formal  contracts  in  the  common  law, 
resting  on  the  rule  that  what  a  man  does  under  his  hand  and  seal 
he  cannot  dispute  in  a  court  of  law. 

Third,  there  is  a  theory  of  simple  contracts,  developed  by  the 
slow  process  of  judicial  decision  through  the  action  of  assumpsit. 
The  history  of  this  action  shows  the  growth  of  the  idea  of  contractual 
obligation  from  the  original  idea  of  tort  or  deceit.  The  modern 
idea  of  simple  contract  recognizes  contractual  obligation  as  due  to 
the  responsibility  which  the  law  imposes  on  one  who  by  his  conduct 
influences  the  action  of  another.  The  idea  of  simple  contract, 
therefore,  appears  to  be  closely  connected  with  the  ideas  of 
equitable  estoppel  and  of  deceit.  The  general  theory  of  simple 
centract  is  differently  applied  by  different  courts,  according  to  their 
definition  of  consideration.  In  one  of  its  branches  it  appears  as  the 
consideration  theory;  in  the  other,  as  the  estoppel  theory. 

Fourth,  the  idea  that  contractual  obligation  has  its  origin  and 
foundation  in  the  agreement  of  the  parties,  has  some  support 
in  judicial  opinion,  and  the  support  of  some  of  the  leading 
English  and  American  text-writers.  This  consensual  theory  is 
insufficient  to  explain  our  law  of  contracts,  as  has  been  pointed  out. 
It  derives  its  chief  force  from  the  vigor  with  which  two  leading  Eng- 
lish writers  have  indorsed  the  theories  of  continental  jurists.     The 


536  OBLIGATIONS 

existence  of  this  theory  must  be  recognized,  even  though  its  inade- 
quacy as  an  explanation  of  our  judicial  decisions  be  apparent. 

Fifth,  there  is  a  strong  tendency  toward  the  unification  of  the 
theories  of  formal  and  of  simple  contracts.  This  tendency  is  due 
to  the  constant  gain  which  equitable  principles  have  made  and 
are  making  over  merely  technical  rules.  Its  effect  is  to  bring  the 
rules  go\'erning  formal  contracts  more  and  more  into  harmony 
with  the  broad  principles  governing  simple  contracts,  and,  in  general, 
to  substitute  equitable  for  legal  rules. 

Langdell,  Summary  of  Contracts,  §§  46-47. 

46.  It  is  a  familiar  rule  of  law  that  contracts  not  under  seal  re- 
quire a  consideration  to  make  them  binding,  while  contracts  under 
seal  are  binding  without  a  consideration ;  and  hence  it  is  commonly 
inferred  that  all  contracts  not  under  seal  are  alike  in  respect  to 
consideration.  In  one  sense  this  inference  is  correct,  but  in  another 
sense  it  is  incorrect.  There  are  two  kinds  of  consideration  known 
to  the  law,  and  contracts  not  under  seal  may  be  divided  into  two 
classes,  according  as  they  are  supported  by  the  one  or  the  other  of 
these  consideration?;  and  yet  either  kind  of  consideration  is  suf- 
ficient to  render  any  contract  binding.  In  other  words,  all  contracts 
not  under  seal  are  alike  in  respect  to  the  consideration  required  to 
make  them  binding,  but  whether  a  contract  belongs  to  the  one 
or  the  other  of  the  two  classes  above  referred  to  depends  upon  the 
kind  of  consideration  by  which  it  is  supported.  These  two  classes 
of  contracts  are  most  easily  distinguished  by  the  actions  by  which 
they  are  respectively  enforced,  the  action  of  debt  being  the  original 
and  proper  remedy  for  one  class,  and  the  action  of  assumpsit  being 
the  sole  remedy  for  the  other  class.  The  former  class  has  existed 
in  our  law  from  time  immemorial;  the  latter  class  had  no  legal 
existence  (i.  e.,  they  could  not  be  enforced  by  law)  until  the  intro- 
duction of  the  action  of  assumpsit,  it  having  been  originally  the 
sole  object  of  that  action  to  enforce  a  class  of  contracts  for  which 
there  was  previously  no  remedy.  In  respect  to  consideration,  the 
former  class  of  contracts  requires  that  the  thing  given  or  done, 
in  exchange  for  the  obligation  assumed,  shall  be  given  or  done  to  or 
for  the  obligor  directly;  that  it  shall  be  received  by  the  obligor  as 
the  full  equivalent  for  the  obligation  assumed,  and  be,  in  legal 
contemplation,  his  sole  motive  for  assuming  the  obligation;  and, 
lastly,  that  it  shall  be  actually  executed,  i.  e.  that  the  thing  to  be 
given  or  done  in  exchange  for  the  obligation  be  actually  given  or 


CONTRACTS  537 

done,  It  not  being  sufficient  for  the  obligee  to  become  bound  to 
do  it.  Unless  there  is  a  consideration  which  satisfies  each  of  these 
requirements,  debt  will  not  lie;  and  this  is  equivalent  to  saying  that 
there  is  no  binding  contract  according  to  the  ancient  law.  Whether 
there  is  a  binding  contract  at  all,  or  not,  depends  upon  whether 
there  is  such  a  consideration  as  will  support  an  action  of  assumpsit. 
This  latter  kind  of  consideration  may  be  best  described  negatively, 
namely,  by  saying  that  it  need  not  satisfy  any  one  of  the  require- 
ments before  enumerated.  If  anything  whatever  (which  the  law 
can  notice)  be  given  or  done  in  exchange  for  the  promise,  it  is 
sufficient;  and  therefore,  if  one  promise  be  given  in  exchange  for 
another  promise,  there  is  a  sufficient  consideration  for  each.  It 
is  obvious  that  this  more  modern  species  of  consideration  was  de- 
rived directly  from  the  more  ancient;  that,  in  truth,  it  is  the  ancient 
consideration  relaxed  and  reduced  to  a  minimum.  How  and  why 
this  relaxation  took  place,  it  is  not  difficult  to  see.  The  ancient 
consideration  was  required  for  the  creation  of  a  debt,  because 
"debt"  w-as  the  name  given  to  the  contract  which  had  been  bor- 
rowed from  the  Romian  law.  A  debt  (i.  e.  by  simple  contract) 
could  be  created,  therefore,  only  in  the  mode  in  which  a  real  con- 
tract w  as  made  by  the  Romans ;  and  the  consideration  in  case  of  a 
debt  corresponded  to  the  res  which  gave  the  name  to  the  Roman 
contract.  The  consideration,  therefore,  was  of  the  very  essence  of 
a  debt, — was,  in  fact,  what  created  it.  But  when  the  action  of  as- 
sumpsit was  introduced,  and  a  new  class  of  contracts  came  to  be 
enforced,  it  was  neither  necessary  nor  possible  to  require  the  old 
consideration  to  make  the  new  contracts  binding.  It  was  not  nec- 
essary, because  it  was  neither  supposed  nor  claimed  that  the  new 
contracts  created  or  constituted  debts;  and  it  w^as  not  possible, 
because  the  very  reason  why  a  new  action  was  required  to  enforce 
these  contracts  was  that  they  had  not  a  sufficient  consideration  to 
support  an  action  of  debt.  Some  relaxation,  therefore,  was  in- 
dispensable from  the  beginning;  and  the  process  having  begun, 
there  was  found  to  be  no  satisfactory  stopping-place  until  the 
result  already  stated  was  reached.  It  may  be  urged  that  a  more 
rational  course  would  have  been  to  apply  the  maxim,  Cessante 
ratione,  cessat  ipsa  lex,  and  to  hold  that  the  action  of  assumpsit 
required  no  consideration  to  support  it.  To  this,  howe\'er,  it  may 
be  answ-ered,  that  the  courts  could  not  change  the  law  by  their 
own  authority;  that  the  action  of  assumpsit  was  the  creature  of 
a  statute,  and  w^as  limited  to  cases  which  were  analogous  to  cases 


538  OBLIGATIONS 

for  which  a  legal  remedy  was  already  provided ;  that  promises  not 
under  seal  and  without  consideration  were  not  analogous  to  any 
contracts  which  had  ever  been  enforced,  and  that  to  have  enforced 
such  promises  would  have  been  to  put  parol  contracts  on  the  same 
footing  with  specialties. 

47.  But  whatever  may  have  been  the  merits  of  the  question 
originally,  it  was  long  since  conclusively  settled  in  the  manner 
stated  above;  and  thus  the  action  of  assumpsit  modified  the  old 
consideration  instead  of  wholly  superseding  it;  but  so  important 
were  the  modifications  that  the  relationship  of  the  new  consideration 
to  the  old  has  been  almost  wholly  lost  sight  of.  Nay,  the  old  con- 
sideration itself  has  been  nearly  lost  sight  of,  though  it  is  as  nec- 
essary now  as  it  ever  was  for  the  creation  of  a  debt  by  simple 
contract.  The  reason  is  obvious.  When  the  old  consideration 
ceased  to  be  necessary  to  the  validity  of  any  contract,  it  lost  in  a 
great  measure  its  practical  importance,  except  to  lawyers;  and 
when,  by  degrees,  assumpsit  had  superseded  debt  upon  simple 
contract,  it  ceased  to  attract  the  attention  even  of  lawyers.  The 
result  is,  that  the  term  "consideration"  has  practically  changed  its 
meaning;  having  formerly  meant  the  consideration  necessary  to 
create  a  debt,  it  now  means  the  consideration  necessary  to  support 
assumpsit.  It  is  in  this  latter  sense  that  it  now  constitutes  an  im- 
portant branch  of  the  law  of  contracts.  .  .  . 

Ames,  History  of  Assumpsit,  2  Harv.  Law  Rev.,  1-2,  14-16, 
17-19. 

The  mystery  of  consideration  has  possessed  a  peculiar  fascination 
for  writers  upon  the  English  Law  of  Contract.  No  fewer  than 
three  distinct  theories  of  its  origin  have  been  put  forward  within 
the  last  eight  years.  According  to  one  view,  "the  requirement  of 
consideration  in  all  parol  contracts  is  simply  a  modified  generaliza- 
tion of  quid  pro  quo  to  raise  a  debt  by  parol."  On  the  other  hand, 
consideration  is  described  as  "a  modification  of  the  Roman  prin- 
ciple of  causa,  adopted  by  equity,  and  transferred  thence  into  the 
common  law."  A  third  learned  writer  derives  the  action  of 
assumpsit  from  the  action  on  the  case  for  deceit,  the  damage  to 
the  plaintiff  in  that  action  being  the  forerunner  of  the  "detriment 
to  the  promisee,"  which  constitutes  the  consideration  of  all  parol 
contracts. 

To  the  present  writer  it  seems  impossible  to  refer  consideration 
to  a  single  source.     At  the  present  day  it  is  doubtless  just  and 


CONTRACTS  539 

expedient  to  resolve  every  consideration  into  a  detriment  to  the 
piomisee,  incurred  at  the  request  of  the  promisor.  But  this  defini- 
tion of  consideration  would  not  have  covered  the  cases  of  the 
sixteenth  century.  There  were  then  two  distinct  forms  of  consid- 
eration: (1)  detriment;  (2)  a  precedent  debt.  Of  these,  detriment 
was  the  more  ancient,  having  become  established,  in  substance, 
as  early  as  1504.  On  the  other  hand,  no  case  has  been  found  recog- 
nizing the  validity  of  a  promise  to  pay  a  precedent  debt  before  1542, 
These  two  species  of  consideration,  so  different  in  their  nature,  are, 
as  would  be  surmised,  of  distinct  origin.  The  history  of  detriment 
is  bound  up  with  the  history  of  special  assiimpsii,  whereas  the  con- 
sideration based  upon  a  precedent  debt  must  be  studied  in  the 
development  of  indebitatus  assumpsit 

That  equity  gave  relief,  before  1500,  to  a  plaintiff  who  had 
incurred  detriment  on  the  faith  of  the  defendant's  promise,  is  rea- 
sonably clear,  although  there  are  but  three  reported  cases.  In 
one  of  them,  in  1378,  the  defendant  promised  to  convey  certain 
land  to  the  plaintiff,  who,  trusting  in  the  promise,  paid  out  money 
in  travelling  to  London  and  consulting  counsel;  and  upon  the 
defendant's  refusal  to  convey,  prayed  for  a  suhpana  to  compel  the 
defendant  to  answer  of  his  "disceit."  The  bill  sounds  in  tort  rather 
than  in  contract,  and  inasmuch  as  even  cestuis  que  use  could  not 
compel  a  conveyance  by  their  feoffees  to  use  at  this  time,  its  object 
was  doubtless  not  specific  performance,  but  reimbursement  for  the 
expenses  incurred.  Appilgrath  v.  Sergeantson  (1438)  was  also  a 
bill  for  restitutio  in  integrum,  savoring  strongly  of  tort.  It  was 
brought  against  a  defendant  who  had  obtained  the  plaintiff's 
money  by  promising  to  marry  her,  and  who  had  then  married  another 
in  "grete  deceit."  The  remaining  case,  thirty  years  later,  does 
not  differ  materially  from  the  other  two.  The  defendant,  having 
induced  the  plaintiff  to  become  the  procurator  of  his  benefice, 
by  a  promise  to  save  him  harmless  for  the  occupancy,  secretly 
resigned  his  benefice,  and  the  plaintiff,  being  afterwards  vexed  for 
the  occupancy,  obtained  relief  by  suhpcena. 

Both  in  equity  and  at  law,  therefore,  a  remediable  breach  of  a 
parol  promise  was  originally  conceived  of  as  a  deceit;  that  is,  a 
tort.  Assumpsit  was  in  several  instances  distinguished  from  con- 
tract. By  a  natural  transition,  however,  actions  upon  parol 
promises  came  to  be  regarded  as  actions  ex  contractu.  Damages 
were  soon  assessed,  not  upon  the  theory  of  reimbursement  for  the 
loss  of  the  thing  given  for  the  promise,  but  upon  the  principle  of 


540  OBLIGATIONS 

compensation  for  the  failure  to  obtain  the  thing  promised.  Again, 
the  liability  for  a  tort  ended  with  the  life  of  the  wrong-doer.  But 
after  the  struggle  of  a  century,  it  was  finally  decided  that  the  per- 
sonal representatives  of  a  deceased  person  were  as  fully  liable  for 
his  assumpsits  as  for  his  covenants.  Assumpsu,  however,  long 
retained  certain  traces  of  its  delictual  origin.  The  plea  of  not 
guilty  was  good  after  verdict,  "because  there  is  a  disceit  alleged." 
Chief  Baron  Gilbert  explains  the  comprehensive  scope  of  the  gen- 
eral issue  in  assumpsit  by  the  fact  that  "the  gist  of  the  action  is 
the  fraud  and  delusion  that  the  defendant  hath  offered  the  plaintiff 
in  not  performing  the  promise  he  had  made,  and  on  relying  on  which 
the  plaintiff  is  hurt."  This  allegation  of  deceit,  in  the  familiar 
form:  "Yet  the  said  C.  D.,  not  regarding  his  said  promise,  but 
contriving  and  fraudulently  intending,  craftily  and  subtly,  to  de- 
ceive and  defraud  the  plaintiff,"  etc.,  which  persisted  to  the  present 
century,  is  an  unmistakable  mark  of  the  genealogy  of  the  action. 
Finally,  the  consideration  must  move  from  the  plaintiff  today, 
because  only  he  who  had  incurred  detriment  upon  the  faith  of  the 
defendant's  promise,  could  maintain  the  action  on  the  case  for 
deceit  in  the  time  of  Henry  VII. 


Indebitatus  assumpsit,  unlike  special  assumpsit,  did  not  create 
a  new  substantive  right;  it  was  primarily  only  a  new  form  of  pro- 
cedure, whose  introduction  was  facilitated  by  the  same  circumstances 
which  had  already  made  Case  concurrent  with  Detinue.  But 
as  an  express  assumpsit  was  requisite  to  charge  the  bailee,  so  it 
was  for  a  long  time  indispensable  to  charge  a  debtor.  The  basis 
or  cause  of  the  action  was,  of  course,  the  same  as  the  basis  of 
debt,  i.e.,  quid  pro  quo,  or  benefit.  This  may  explain  the  inveterate 
practice  of  defining  consideration  as  either  a  detriment  to  the  plain- 
tiff or  a  benefit  to  the  defendant. 

Promises  not  being  binding  of  themselves,  but  only  becaus-e  of 
the  detriment  or  debt  for  which  they  were  given,  a  need  was 
naturally  felt  for  a  single  word  to  express  the  additional  and  essen- 
tial requisite  of  all  parol  contracts.  No  word  was  so  apt  for  the 
purpose  as  the  word  "consideration."  Soon  after  the  reign  of  Henry 
VIII,  if  not  earlier,  it  became  the  practice,  in  pleading,  to  lay  all 
assumpsits  as  made  in  consideratione  of  the  detriment  or  debt. 
And  these  words  became  the  peculiar  mark  of  the  technical  action  of 
assumpsit,  as  distinguished  from  other  actions  on  the  case  against 


CONTRACTS  541 

surgeons  or  carpenters,  bailees  and  warranting  vendors,  in  which, 
as  wc  have  seen,  it  was  still  customary  to  allege  an  undertaking 
by  the  defendant. 

It  follows,  from  what  has  been  written,  that  the  theory  that  con- 
sideration is  a  "modification  of  quid  pro  quo,''  is  not  tenajjle.  On 
the  one  hand,  the  consideration  of  indebitatus  assumpsit  was  identi- 
cal with  quid  pro  quo,  and  not  a  modification  of  it.  On  the  other 
hand,  the  consideration  of  detriment  was  dc\eloped  in  a  field  of  the 
law  remote  from  debt;  and,  in  view  of  the  sharp  contrast  that  has 
always  been  drawn  between  special  assumpsit  and  debt,  it  is  impos- 
sible to  believe  that  the  basis  of  the  one  action  was  evolved  from 
that  of  the  other. 

Nor  can  that  other  theory  be  admitted  by  which  consideration 
was  borrowed  from  equity,  as  a  modification  of  the  Roman  ''causa.'' 
The  word  "consideration"  was  doubtless  first  used  in  equity;  but 
without  any  technical  significance  before  the  sixteenth  century. 
Consideration  in  its  essence,  however,  whether  in  the  form  of  detri- 
ment or  debt,  is  a  common-law  growth.  Uses  arising  upon  a  bar- 
gain or  covenant  were  of  too  late  introduction  to  have  any  influence 
upon  the  law  of  assumpsit.  Two  out  of  three  judges  questioned 
their  validity  in  1505,  a  year  after  assumpsit  was  definitely  estab- 
lished. But  we  may  go  farther.  Not  only  was  the  consideration 
of  the  common-law  action  of  assumpsit  not  borrowed  from  equity, 
but,  on  the  contrary,  the  consideration,  which  gave  validity  to 
parol  uses  by  bargain  and  agreement,  was  borrowed  from  the  com- 
mon law.  The  bargain  and  sale  of  a  use,  as  well  as  the  agreement 
to  stand  seised,  were  not  executory  contracts,  but  conveyances. 
No  action  at  law  could  ever  be  brought  against  a  bargainor  or 
covenantor.  The  absolute  owner  of  land  was  conceived  of  as  ha\ing 
in  himself  two  distinct  things,  the  seisin  ar.d  the  use.  As  he  might 
make  livery  of  seisin  and  retain  the  use,  so  he  was  permitted,  at 
last,  to  grant  away  the  use  and  keep  the  seisin.  The  grant  of  the 
use  was  furthermore  assimilated  to  the  grant  of  a  chattel  or  money. 
A  quid  pro  quo,  or  a  deed,  being  essential  to  the  transfer  of  achattel 
or  the  grant  of  a  debt,  it  was  required  also  in  the  grant  of  a  use. 
Equity  might  conceivably  ha\'e  enforced  uses  wherever  the  grant 
was  by  deed.  But  the  chancellors  declined  to  carry  the  innovation 
so  far  as  this.  They  enforced  only  those  gratuitous  covenants 
which  tended  to  "the  establishment  of  the  house"  of  the  covenan- 
tor; in  other  words,  covenants  made  in  consideration  of  blood  or 
marriage. 


542  OBLIGATIONS 

(b)   Express  Trusts 

Langdell,  Brief  Survey  of  Equity  Jurisdiction,  2,  7,  11-13. 

Obligations  are  either  personal  or  real,  according  as  the  duty  is 
imposed  upon  a  person  or  a  thing.  An  obligation  may  be  imposed 
upon  a  person  or  a  thing.  An  obligation  may  be  imposed  upon  a 
person  either  by  his  own  act,  namely,  by  a  contract,  or  by  act  of 
law. 

An  obligation  may  be  imposed  upon  a  thing  either  by  the  will  of 
its  owner,  manifested  by  such  act  or  acts  as  the  particular  system 
of  law  requires,  or  by  act  of  law.  It  is  in  such  obligations  that  those 
rights  of  property  originate  which  are  called  rights  in  the  property 
of  another — jura  in  re  aliena.  Instances  of  real  obligations  will  be 
found  in  servitudes  or  easements,  in  which  the  law  regards  the  ser- 
vient tenement  as  owing  the  service;  also  in  the  Roman  pignus  and 
hypotheca,  in  which  the  res,  pignorated  or  hypothecated  to  secure 
the  payment  of  a  debt,  was  regarded  as  a  surety  for  the  debt. 
The  pignus  has  been  adopted  into  our  law  under  the  name  of  pawn 
or  pledge.  The  hypotheca  has  been  rejected  by  our  common  law, 
though  it  has  been  adopted  by  the  admiralty  law.  A  lien  is  anothe*" 
instance  of  a  real  obligation  in  our  law,  the  very  words  "lien"  and 
"obligation,"  having  the  same  meaning  and  the  same  derivation. 
A  familiar  instance  of  a  real  obligation  created  by  law  will  be  found 
in  the  lien  of  a  judgment  or  recognizance.  .  .  . 

Legal  personal  obligations  may  be  created  without  limitation, 
either  in  respect  to  the  persons  between  whom,  or  the  purposes  for 
which,  they  are  created,  provided  the  latter  be  not  illegal.  But  it 
is  otherwise  with  equitable  obligations ;  for,  as  they  must  be  founded 
originally  upon  legal  rights,  so  they  can  be  imposed  originally  only 
upon  persons  in  whom  legal  rights  are  vested,  and  only  in  respect 
of  such  legal  rights;  i.  e.,  only  for  the  purpose  of  imposing  upon 
the  obligors  in  favor  of  the  obligees  some  duty  in  respect  to  such 
legal  rights.  But  the  original  creation  of  equitable  obligations  is 
subject  to  still  further  limitations,  for  it  is  not  all  legal  rights  that 
can  be  the  subjects  of  equitable  obligations.  Only  those  can  be  so 
which  are  alienable  in  their  nature.  Of  absolute  rights,  therefore, 
none  of  those  which  are  personal  can  ever  be  the  subjects  of  equitable 
obligations,  while  nearly  all  rights  which  consist  in  ownership  can 
be  the  subjects  of  such  obligations.  Relative  rights  can  generally 
be  the  subjects  of  equitable  obligations,  but  not  always.  For  ex- 
ample, some  rights  arising  from  real  obligations,  are  inseparably 


EXPRESS  TRUSTS  543 

annexed  to  the  ownership  of  certain  land,  and,  therefore,  are  not 
alienable  by  themselves.  So,  also,  some  rights  arising  from  personal 
obligations  are  so  purely  personal  to  the  obligee  as  to  be  obviously 
inalienable.  It  is  only  necessary  to  mention,  as  an  extreme  case,  the 
right  arising  from  a  promise  to  marry. 

How,  then,  are  purely  equitable  obligations  created?  For  the 
most  part,  either  by  the  acts  of  third  persons  or  by  equity  alone. 
But  how  can  one  person  impose  an  obligation  upon  another?  By 
giving  property  to  the  latter  on  the  terms  of  his  assuming  an  obli- 
gation in  respect  to  it.  At  law  there  are  only  two  means  by  which 
the  object  of  the  donor  could  be  at  all  accomplished,  consistently 
with  the  entire  ownership  of  the  property  passing  to  the  donee, 
namely:  first,  by  imposing  a  real  obligation  upon  the  property; 
secondly,  by  subjecting  the  title  of  the  donee  to  a  condition  sub- 
sequent. The  first  of  these  the  law  does  not  permit;  the  second 
is  entirely  inadequate.  Equity,  however,  can  secure  most  of  the 
objects  of  the  doner,  and  yet  avoid  the  mischiefs  of  real  obligations, 
by  imposing  upon  the  donee  (and  upon  all  persons  to  whom  the 
property  shall  afterwards  come  without  value  or  with  notice)  a 
personal  obligation  with  respect  to  the  property;  and  accordingly 
this  is  what  equity  does.  It  is  in  this  way  that  all  trusts  are  created, 
and  all  equitable  charges  made  (i.  e.,  equitable  hypothecations  or 
liens  created)  by  testators  in  their  wills.  In  this  way,  also,  most 
trusts  are  created  by  acts  inter  vivos,  except  in  those  cases  in  which 
the  trustee  incurs  a  legal  as  well  as  an  equitable  obligation.  In 
short,  as  property  is  the  subject  of  every  equitable  obligation,  so 
the  owner  of  property  is  the  only  person  whose  act  or  acts  can  be 
the  means  of  creating  an  obligation  in  respect  to  that  property. 
Moreover,  the  owner  of  property  can  create  an  obligation  in  respect 
to  it  in  only  two  ways:  first,  by  incurring  the  obligation  himself, 
in  which  case  he  commonly  also  incurs  a  legal  obligation;  secondly, 
by  imposing  the  obligation  upon  some  third  person;  and  this  he 
does  in  the  way  just  explained. 

But  suppose  a  person,  to  whom  property  is  given  on  the  terms 
of  his  incurring  an  equitable  obligation  in  respect  to  it,  is  unwilling 
to  incur  such  obligation,  shall  it  be  imposed  upon  him  against  his 
will?  Certainly  not,  if  he  employs  the  proper  means  for  preventing 
it;  but  the  only  sure  means  of  preventing  it  is  by  refusing  to  accept 
the  property,  i.  e.,  to  become  the  owner  of  it;  for  no  person  can  be 
compelled  to  become  the  owner  of  property  even  by  way  of  gift. 


544  OBLIGATIONS 

If  he  once  accept  the  property,  the  equitable  obHgation  necessarily 
arises,  and  he  can  get  rid  of  the  latter  only  by  procuring  some  one 
else  to  accept  the  property  with  the  obligation;  and  even  this  he 
cannot  do  without  the  sanction  of  a  court  of  equity. 

An  owner  of  property  may,  however,  incur  an  equitable  obliga- 
tion in  respect  to  it,  founded  upon  his  own  act  and  intention,  and 
yet  make  no  contract,  nor  incur  any  legal  obligation.  For  example, 
if  an  owner  of  property  do  an  act  with  the  intention  of  transferring 
the  property,  but  which  fails  to  accomplish  its  object  because  some 
other  act  is  omitted  to  be  done  which  the  law  makes  necessary, 
equity  will  give  effect  to  the  intention  by  imposing  an  equitable 
obligation  to  do  the  further  act  which  is  necessary  to  effect  the 
transfer,  provided  a  valuable  consideration  was  paid  for  the  act 
already  done,  so  that  the  transfer,  when  made,  will  be  a  transfer 
for  value,  and  not  a  voluntary  ^  transfer.  So,  if  an  owner  of  prop- 
erty, thinking  that  he  has  the  power  to  hypothecate  it  merely  by 
declaring  his  will  to  thateffect,  declare,  for  a  valuable  consideration, 
that  such  property  shall  be  a  security  to  a  creditor  for  the  payment 
of  his  debt,  though  he  will  not  create  a  legal  hypothecation,  nor 
incur  any  legal  obligation,  yet  he  will  create  an  equitable  hypothe- 
cation or  an  equitable  lien  -,1.6.,  equity  will  give  effect  to  the  inten- 
tion by  creating  an  equitable  obligation  to  hold  the  property  as 
if  it  were  legally  bound  for  the  payment  of  the  debt.  In  both  the 
cases  just  put,  equity  proceeds  upon  the  principle  that  the  act  already 
done  would  be  effective  for  the  accomplishment  of  its  object  in  the 
absence  of  any  positive  rule  of  law  to  the  contrary ;  and  in  both  cases 
equity  gives  effect  to  the  intention  without  any  violation  of  law ;  for, 
in  the  first  case,  equity  compels  a  performance  of  every  act  which  the 
law  requires,  while,  in  the  second  case,  equity  merely  creates  a  per- 
sonal obligation  which  violates  no  law,  in  lieu  of  a  real  obligation, 
which  the  law  refuses  to  create. 

Maitland,  Equity,  44-49,  53-56,  115-120. 

I  should  define  a  trust  in  some  such  way  as  the  following: —  When 
a  person  has  rights  which  he  is  bound  to  exercise  upon  behalf  of 
another  or  for  the  accomplishment  of  some  particular  purpose  he 
is  said  to  have  those  rights  in  trust  for  that  other  or  for  that  purpose 
and  he  is  called  a  trustee.  .  .  . 

1.  The  trustee  is  bound  to  use  his  rights  in  a  certain  way,  bound 
to  use  them  for  the  benefit  of  another,  or  for  the  accomplishment 

^  This  is  a  technical  legal  term,  meaning  "for  no  equivalent." 


EXPRESS  TRUSTS  545 

of  a  certain  purpose.  One  is  not  made  a  trustee  by  being  bound 
not  to  use  one's  rights  in  some  particular  manner.  On  every  owner 
of  lands  or  goods  there  lies  the  duty  of  not  using  them  in  various 
ways.  The  law  of  torts  largely  consists  of  rules  which  limit  the 
general  rights  of  owners.  I  must  not  dig  a  quarry  in  my  land  so  as 
tocausethesubsidenceof  my  neighbour's  land.  If  I  do  this  I  comm^it 
a  wrong  and  give  my  neighbour  a  cause  of  action;  but  of  course 
I  am  not  a  trustee  of  my  land  for  him. 

2.  A  debtor  is  not  a  trustee  for  his  creditor.  I  am  heavily  in- 
debted. Certainly  I  ought  not  to  give  away  my  goods  and  thus 
prevent  my  creditors  from  obtaining  payment  of  what  is  due  to 
them.  If  I  do  so  a  court  with  bankruptcy  jurisdiction  may  punish 
me.  What  is  more,  conveyances  or  assignments  of  property  may 
be  set  asid^  as  being  frauds  against  creditors.  For  all  this  I  am  not 
a  trustee  for  my  creditors.  No  creditor  can  point  to  a  particular 
thing  or  a  particular  mass  of  rights  and  say,  "You  were  bound  to  use 
that  or  to  retain  that  for  me  or  to  hand  it  over  tome."  The  creditors, 
unless  they  be  mortgagees,  have  merely  rights  i7i  personam;  if 
they  be  mortgagees  they  have  also  rights  in  rem;  but  in  neither 
case  is  there  any  trust. 

3.  \\e  must  distinguish  the  trust  from  the  bailment.  This  is 
not  \"ery  easy  to  do,  for  in  some  of  our  classical  text-books  per- 
plexing language  is  used  about  this  matter.  For  example.  Black- 
stone  defines  a  bailment  thus:  "Bailment,  from  the  French  bailler, 
is  a  delivery  of  goods  in  trust,  upon  a  contract  expressed  or  implied, 
that  the  trust  shall  be  faithfully  executed  on  the  part  of  the  bailee" 
{Comm.  II.  451). 

Here  a  bailment  seems  to  be  made  a  kind  of  trust.  Now^  of 
course,  in  one  way  it  is  easy  enough  to  distinguish  a  bailment  from 
those  trusts  enforced  by  equity,  and  only  by  equity,  of  which  we 
are  speaking.  We  say  that  the  rights  of  a  bailor  against  his  bailee 
are  legal,  are  common  law  rights,  while  those  of  a  cestui  que  trust 
against  his  trustee  are  never  common  law  rights.  But  then  this 
seems  to  be  a  putting  of  the  cart  before  the  horse ;  we  do  not  explain 
why  certain  rights  are  enforced  at  law',  while  other  rights  are  left 
to  equity. 

Let  us  look  at  the  matter  a  little  more  closely.  On  the  one  hand 
we  will  have  a  bailment- —  A  lends  B  a  quantity  of  books  —  A  lets 
to  B  a  quantity  of  books  in  return  for  a  periodical  payment  - — •  A 
deposits  a  lot  of  books  with  B  for  safe  custody.  In  each  of  these 
cases  B  receives  rights  from  A,  and  in  each  of  these  cases  B  is  under 


546  OBLIGATIONS 

an  obligation  to  A;  he  is  bound  with  more  or  less  rigor  to  keep  the 
books  safely  and  to  return  them  to  A.  Still,  we  do  not,  I  think, 
conceive  that  B  is  bound  to  use  on  A's  behalf  the  rights  that  he, 
B,  has  in  the  books.  Such  rights  as  B  has  in  them  he  has  on  his 
own  behalf,  and  those  rights  he  may  enjoy  as  seems  best  to  him. 
On  the  other  hand,  S  is  making  a  marriage  settlement  and  the 
property  that  he  is  settling  includes  a  library  of  books;  he  vests 
the  whole  ownership  of  these  books  in  T  and  T'  who  are  to  permit 
S  to  enjoy  them  during  his  life  and  then  to  permit  his  firstborn  son 
to  enjoy  them  and  so  forth.  .  .  .  Now  here  T  and  T'  are  full 
owners  of  the  chattels.  S  and  the  other  cestui  que  trusts  have  no 
rights  in  the  chattels,  but  T  and  T'  are  bound  to  use  their  rights 
according  to  the  words  of  the  settlement,  words  which  compel  them 
to  allow  S  and  the  other  cestui  que  trusts  to  enjoy  those  things.  .  .  . 
There  are  two  tests  which  will  bring  out  the  distinction.  The  one 
is  afforded  by  the  law  of  sale,  the  other  by  the  criminal  law. 

(a)  A  is  the  bailor,  B  is  the  bailee  of  goods;  B  sells  the  goods 
to  X,  the  sale  not  being  authorized  by  the  terms  of  the  bailment  and 
not  being  made  in  market  overt  or  within  the  Factor's  Acts.  X, 
though  he  purchases  in  good  faith,  and  though  he  has  no  notice  of 
A's  rights,  does  not  get  a  good  title  to  the  goods.  A  can  recover 
them  from  him ;  if  he  converts  them  to  his  use  he  wrongs  A.  Why? 
Because  he  bought  them  from  one  who  was  not  owner  of  them. 
Turn  to  the  other  case.  T  is  holding  goods  as  trustee  of  S's  mar- 
riage settlement.  In  breach  of  trust,  he  sells  them  to  X;  X  buys 
in  good  faith  and  has  no  notice  of  the  trust.  X  gets  a  good  title  to 
the  goods;  T  was  the  owner  of  the  goods;  he  passed  his  rights  to 
X;  X  became  the  owner  of  the  goods  and  S  has  no  right  against  X 
—  for  it  is  an  elementary  rule,  to  which  I  must  often  refer  here- 
after, that  trust  rights  cannot  be  enforced  against  one  who  has 
acquired  legal  {i.e.,  common  law)  ownership  bona  fide,  for  value, 
and  without  notice  of  the  existence  of  those  trust  rights.  Here  you 
see  one  difference  between  the  bailee  and  the  trustee. 

(6)  Then  look  at .  the  criminal  law.  Even  according  to  our 
medieval  law  a  bailee  could  be  capable  of  the  crime  of  larceny. 
If,  before  the  act  of  taking,  he  had  done  some  act  which,  as  the 
piirase  went,  determined  the  bailment,  if,  for  example,  the  carrier 
broke  bulk  and  then  took  the  goods —  this  was  larceny.  And  now-a- 
days,  as  you  know,  by  virtue  of  a  statute,  the  bailee  can  be  guilty  of 
larceny  though  apart  from  the  act  of  conversion  he  has  done  no 
act  determining  the  bailment.     But  to  the  trustee    of    goods  who 


EXPRESS  TRUSTS  547 

misappropriated  them,  the  common  law  of  crime  had  nothing  what- 
ever to  say.  How  could  a  court  of  common  law  have  punished  the 
trustee?  It  said  that  he  was  the  owner  of  the  goods,  and  a  man 
cannot  steal  what  he  both  owns  and  possesses.  Not  until  1857 
did  it  become  a  crime  for  the  trustee  to  misappropriate  goods  that 
he  held  in  trust  —  and  even  now  the  crime  that  he  commits  is  not 
larceny  and  is  not  a  felony.  All  this  you  may  read  at  large  in 
Stephen's  History  of  the  Criminal  Law.  I  refer  to  it  merely  in  order 
to  show  you  that  despite  Blackstone's  definition  of  a  bailment 
there  is  a  great  and  abiding  distinction  between  a  bailee  of  goods 
and  a  true  trustee  of  goods.  And  the  difference,  I  think,  is  this  — 
the  bailee  though  he  has  rights  in  the  thing  - —  "a  special  property" 
or  "special  ownership"  they  are  sometimes  called- — has  not  the 
full  ownership  of  the  thing;  "the  general  ownership"  or  "the  gen- 
eral property"  is  in  the  bailor.  On  the  other  hand,  the  trustee  is 
the  owner,  the  full  owner  of  the  thing,  while  the  cestui  que  trust  has 
no  rights  in  the  thing.  That  statement  that  cestui  que  trust  has  no 
rights  in  the  thing  may  surprise  you,  but  I  shall  justify  it  hereafter. 
The  specific  mark  of  the  trust  is,  I  think,  that  the  trustee  has 
rights,  which  rights  he  is  bound  to  exercise  for  the  benefit  of  the 
cestui  que  trust  or  for  the  accomplishment  of  some  definite  pur- 
pose.  .   .  . 

Our  next  question  must  be.  How  is  a  trust  created?  And  here 
we  come  upon  a  classification  of  trusts  which  turns  upon  the  mode 
by  which  they  are  created.  Trusts  are  created  (1)  by  the  act  of  a 
party,  (2)  by  the  operation  of  law.  I  do  not  think  that  these 
terms  are  unexceptionable,  still  they  are  well  known  and  useful. 
A  further  classification  has  been  made: 


r  _  ^  \  Express 

I  By  act  of  a  party  ^■ 


Trusts^ 


(^  Implied 
\  Resulting 


By  act  of  the  law    ,  ^ 
L  [  Constructive 

Now,  I  should  say,  that  the  normal  means  by  which  a  person  be- 
comes bound  by  a  trust  is  a  declaration  made  by  him  by  words  or 
implied  in  his  conduct  to  the  effect  that  he  intends  to  be  so  bound. 
As  I  have  already  hinted  this  morning,  the  creation  of  a  trust  may 
be  a  perfectly  unilateral  act  —  there  may  not  be  more  than  one 
party  to  it  —  and  we  may  fail  to  find  in  it  any  element  that  could 
in  the  ordinary  use  of  words  be  called  trust  or  confidence.     I  declare 


548  OBLIGATIONS 

myself  a  trustee  of  this  watch  for  my  son  who  is  in  India.  If  after- 
wards I  sell  that  watch,  although  my  son  has  never  heard  of  the 
benefit  that  I  had  intended  for  him,  I  commit  a  breach  of  trust  and 
my  son  has  an  equitable  cause  of  action  against  me. 

But  though  this  be  so,  the  commonest  origin  of  a  trust  is  a  trans- 
action between  two  persons.  This  we  may  for  a  while  treat  as 
typical.  Here  S  conveys  land,  or  movable  goods,  or  consols,  or  a 
debt,  to  T  upon  a  trust,  and  T  consents  to  execute  that  trust.  We 
have  here  an  agreement  between  S  and  T,  and  since  that  agreement 
is  a  binding  one  —  since  it  can  be  enforced  by  that  part  of  our  law 
which  is  called  equity,  we  well  might  say  that  there  is  a  contract 
between  S  and  T.  Indeed  I  think  it  impossible  so  to  define  a  con- 
tract that  the  definition  shall  not  cover  at  least  three  quarters  of 
all  trusts  that  are  created.  For  my  own  part,  I  think  that  we 
ought  to  confess  that  we  cannot  define  either  agreement  or  con- 
tract without  including  the  great  majority  of  trusts,  and  that  the 
reasons  why  we  still  treat  the  law  of  trusts  as  something  apart 
from  the  law  of  contract  are  reasons  which  can  be  given  only  by  a 
historical  statement.  Trusts  fell  under  the  equitable  jurisdiction 
of  the  Court  of  Chancery  and  for  that  very  reason  the  Courts  of 
Law  did  not  enforce  them.  Just  now  and  again  they  threatened 
to  give  an  action  for  damages  against  the  defaulting  trustee  — 
but  they  soon  abandoned  this  attempt  to  invade  a  province  which 
equity  had  made  its  own.  Therefore,  for  a  very  long  time  to  come, 
I  think  that  we  shall  go  on  treating  the  law  of  trusts  as  something 
distinct  from  the  law  of  contracts  —  we  shall  find  the  former  in 
one  set  of  books,  the  latter  in  another  set.  Only  let  us  see  that  in 
the  common  case  a  trust  originates  in  what  we  cannot  but  call  an 
agreement.  S  transfers  land  or  goods  or  debts  to  T  upon  a  trust; 
T  promises,  expressly  or  by  his  conduct,  that  he  will  be  bound. 
If  you  please  you  can  analyze  the  transaction  into  a  proposal  and 
an  acceptance  —  Will  you  hold  this  land,  these  goods,  in  trust  for 
my  wife  and  children?     Yes,  I  wnll. 

You  will  find  it  laid  down  as  an  elementary  rule  that  no  one  can 
be  compelled  to  undertake  a  trust.  Until  a  man  has  accepted  a 
trust  he  is  not  a  trustee.  You,  without  my  knowledge,  convey 
land  unto  and  to  the  use  of  me  and  my  heirs  upon  trust  for  X. 
When  I  hear  of  that  conveyance  I  can  renounce  the  rights  and  the 
duties  that  you  have  attempted  to  cast  upon  me.  If  I  am  prudent 
I  shall  very  likely  execute  a  deed  saying  that  I  renounce  the  estate; 
but  now-a-days  it  is  clear  that  even  a  freehold  estate  (there  used  to 


EXPRESS  TRUSTS  549 

be  doubt  about  this)  may  be  renounced  by  parol.  I  do  not  think  that 
in  strictness,  any  acti\"c  renunciation  can  be  expected  of  me  any  more 
than  I  can  be  compelled  to  answer  a  letter  in  which  you  propose  to 
sell  me  a  horse.  If,  when  I  hear  of  the  trust  I  simply  do  nothing, 
then  I  am  no  trustee,  I  thereby  disclaim  the  estate.  .  .  .  Upon 
principle,  as  it  seems  to  me,  the  law  cannot  throw  on  a  man  the 
burden  of  cither  accepting  or  rejecting  the  trust;  if  he  does  abso- 
lutely nothing  that  can  be  construed  as  an  acceptance  of  the  trust, 
this  should  be  enough.  But  in  practice  it  would  not  be  very  safe 
to  rely  upon  this  doctrine,  for  one  may  very  easily  do  something 
or  say  something  that  can  be  regarded  as  an  acceptance  of  the 
trust.  .  .  . 

Now  as  regards  the  formalities  necessary  to  the  constitution  of  a 
trust,  there  is  extremely  little  law  —  trusts  have  not  been  hedged 
about  by  formalities.  I  believe  that  I  may  state  the  matter  thus: 
Subject  to  one  section  of  the  Statute  of  Frauds  and  to  the  Wills 
Act,  a  trust  can  be  created  without  deed,  without  writing,  without 
formality  of  any  kind  by  mere  word  cf  mouth;  and  subject  to  cer- 
tain established  rules  of  construction,  no  particular  words  are 
necessary. 

We  may  well  say  therefore  that  a  cestui  que  trust  has  rights 
which  in  many  w^ays  are  treated  as  analogous  to  true  proprietary 
rights,  to  jura  iyi  rem.     But  are  they  really  such? 

We  must  begin  with  this  that  the  use  or  trust  was  originally 
regarded  as  an  obligation,  in  point  of  fact  a.  con  tract  though  not 
usually  so  called.  If  E  enfeoffs  T  to  his  (E's)  use  the  substance  of 
the  matter  clearly  seems  to  be  this,  that  T  has  undertaken,  has 
agreed,  to  hold  the  land  to  the  use  of  E. 

To  my  mind  it  is  much  easier  to  understand  why  the  Chancellors 
of  the  fifteenth  century  should  have  enforced  such  a  compact  than 
why  the  courts  of  law  should  have  refused  a  remedy.  Why  should 
they  not  have  given  an  action  of  assumpsit?  (See  on  this  ques- 
tion, Pollock,  Land  Laivs,  Note  E.)  The  action  of  assumpsit  was 
just  being  developed  when  uses  were  becoming  fashionable.  It 
would,  I  think,  be  found  that  the  Chancellors  were  beforehand  in 
this  matter  and,  by  giving  a  far  more  perfect  remedy  than  the 
common-law  courts  could  give,  made  any  remedy  in  those  courts 
unnecessary.  All  that  the  cestui  que  use  could  have  obtained  from 
them  would  have  been  an  action  for  damages;  the  Chancellor 
compelled  the  feoffee  not  only  to  answer  any  complaint  on  oath 


550  OBLIGATIONS 

but  also  to  perform  his  duty  specifically  on  pain  of  going  to  prison. 
Anyhow  a  cestui  que  use  or  cestui  que  trust  never  got  an  action  at 
common  law  against  his  trustee;  but  all  the  same  it  seems  utterly 
impossible  for  us  to  fram^e  any  definition  of  a  contract  which  shall 
not  include  the  acts  by  which  ninety-nine  out  of  every  hundred 
trusts  are  created,  unless  we  have  recourse  to  the  expedient  of  add- 
ing to  our  definition  of  contract  a  note  to  the  effect  that  the  crea- 
tion of  a  trust  is  to  be  excluded.  This  is  excellently  explained 
by  Sir  Frederick  Pollock.  We  are,  as  I  think,  obliged  to  say  that 
though  our  definition  of  contract  will  include  almost  every  act 
creating  a  trust,  yet  for  historical  reasons  which  still  have  an  impor- 
tant, influence  on  the  whole  scheme  of  our  existing  law,  trusts  are 
not  brought  within  all,  or  even  perhaps  the  larger  part,  of  the 
great  principles  which  form  the  Law  of  Contract,  but  have  rules  of 
their  own.  Thus,  to  give  one  example,  though  as  I  have  just  said 
ninety-nine  out  of  a  hundred  trusts  begin  in  a  transaction  which 
must  fall  within  our  definition  of  an  agreement,  the  hundredth  will 
not;  for  I  can  make  myself  a  trustee  for  a  person,  and  so  create  a 
trust,  without  his  knowing  anything  about  it,  by  a  declaration 
that  I  hold  lands  or  goods  in  trust  for  him.  Certainly,  as  a  matter 
of  convenience,  it  seems  desirable  to  keep  the  Law  of  Trust  apart 
from  the  Law  of  Contract,  though  as  a  matter  of  principle  it  is 
necessary  to  see,  as  we  shall  see  hereafter,  that  there  are  important 
analogies  between  the  two. 

However  our  present  point  must  be  that  the  Law  of  Trusts 
(formerly  uses)  begins  with  this,  a  person  who  has  undertaken  a 
trust  is  bound  to  fulfil  it.  We  have  no  difficulty  in  finding  a  ground 
for  this  —  the  trustee,  the  feoffee  to  uses,  is  bound  because  he  has 
bound  himself.  This  is  the  original  notion.  The  right  of  cestui 
que  trust  is  the  benefit  of  an  obligation.  This  is  how  Coke  under- 
Ftood  the  matter.  "An  use  is  a  trust  or  confidence  reposed  in  some 
other,  which  is  not  issuing  out  of  the  land,  but  as  a  thing  collateral 
annexed  in  privity  to  the  estate  of  the  land,  and  to  the  person 
touching  the  land  .  .  .  cestui  que  use  had  neither  jus  in  re  nor 
jus  ad  rem,  but  only  a  confidence  and  trust."     (Co.  Lit.  272  b.) 

But  if  this  be  so,  why  is  it  that  the  rights  of  cestui  que  trust  come 
to  look  so  very  like  real  proprietary  rights,  so  like  ownership,  so 
that  we  can  habitually  speak  and  think  of  him  as  the  owner  of 
lands  and  goods?  Part  of  the  answer  has  already  been  given. 
As  regards  (if  I  may  be  allowed  the  phrase)  their  internal  character 
these  equitable  rights  are  treated  as  analogous  to  legal  rights  in 


EXPRESS  TRUSTS  551 

lands  or  goods —  I  mean  as  regards  duration,  transmission,  aliena- 
tion. But  the  whole  answer  has  not  yet  been  given.  We  are 
examining  tiie  external  side  of  these  rights,  asking  against  whom 
they  are  good,  and  we  shall  find  that  even  when  examined  from  this 
point  of  view  they  arc  like,  misleadingly  like,  jura  in  rem. 

In  this  development  we  may  trace  several  logical  stages:  — 

(i)  The  first  is  reached  when  the  cestui  que  trust  has  a  remedy 
against  the  person  who  has  undertaken  to  hold  land  or  goods  on 
trust  for  him. 

(ii)  A  second  step  is  easy.  The  use  or  trust  can  be  enforced 
against  those  who  come  to  the  land  or  goods  by  inheritance  or 
succession  from  the  original  trustee,  against  his  heir,  his  executors 
or  administrators,  against  the  trustee's  doweress.  Such  persons 
may  be  regarded  as  sustaining  wholly  or  partially  the  persona  of 
the  original  trustee  and  being  bound  by  his  obligations  as  regards 
the  proprietary  rights  to  which  they  have  succeeded. 

(iii)  A  third  step  is  to  enforce  the  trust  against  the  trustee's 
creditors- — e.g.,  against  the  trustee's  creditor  who  has  taken  the 
land  by  elegit.  There  seems  to  have  been  a  good  deal  of  difficulty 
about  this  step  —  more  than  we  might  have  supposed  —  and  it 
was  not  taken  finally  until  after  the  Restoration  in  1660.  Just 
at  the  same  time  the  Court  of  Chancery  was  beginning  to  insist 
that  the  cestui  que  trust's  creditors  could  attack  his  equitable  rights. 
However  it  became  well  established  that  these  rights  were  good 
against  the  creditors  of  the  trustee. 

(iv)  What  shall  we  say  of  the  trustee's  donee,  of  one  to  whom 
the  trustee  has  given  the  thing  without  valuable  consideration? 
He  has  not  entered  into  any  contract  with  cestui  que  trust  or  into 
anything  at  all  like  a  contract;  he  may  be  utterly  ignorant  of  the 
trust.  Nevertheless  this  step  was  taken,  and  as  it  seems  at  an 
early  period.  The  right  of  cestui  que  trust  was  enforced  against 
any  person  who  came  to  the  thing  through  or  under  the  trustee 
as  a  volunteer —  «.e.,  without  valuable  consideration,  even  though 
he  had  no  notice  of  the  trust.  We  see  the  cestui  que  trust's  right 
beginning  to  look  "real." 

(v)  A  fifth  step  was  taken  and  this  also  at  an  early  time.  The 
trust  was  enforced  even  against  one  who  purchased  the  thing 
from  the  trustee,  if  he  at  the  time  of  the  conveyance  knew  of  the 
trust.  W'hat  is  the  ground  for  this?  The  old  books  are  clear  about 
it,  the  ground  is  fraud  or  something  akin  to  fraud.  It  is  uncon- 
scientious—  "against  conscience"  —  to  buy  what  you  know  to  be 


552  OBLIGATIONS 

held  on  trust  for  another.  The  purchaser  in  such  a  case  is,  we  may 
well  say,  liable  ex  delicto  vel  quasi.  He  has  done  what  is  wrong; 
has  been  guilty  of  fraud,  or  something  very  like  fraud. 

(vi)  Having  taken  this  step,  another  is  inevitable.  If  we  stop 
here,  purchasers  w'ill  take  care  not  to  know  of  the  trust.  To  use  a 
phrase  used  in  the  old  reports,  they  will  shut  their  eyes.  The 
trust  must  be  enforced  against  those  who  would  have  known  of 
the  trust  had  they  behaved  as  prudent  purchasers  behave.  Thus, 
to  use  the  term  which  Holmes  has  made  familiar,  an  objective  stand- 
ard is  set  up,  a  standard  of  diligence.  It  is  not  enough  that  you 
should  be  honest,  it  is  required  of  you  that  you  should  also  be 
diligent.  To  describe  this  standard  will  be  my  object  in  another 
lecture.  Here  it  must  be  enough  that  it  was  and  is  a  high  standard 
— the  conduct  of  a  prudent  purchaser  according  to  the  estimate  cf 
equity  judges.  If  a  purchaser  failed  to  attain  this  standard,  to 
make  all  such  investigations  of  his  vendor's  title  as  a  prudent 
purchaser  would  have  made,  he  was  treated  as  having  notice,  he 
was  "affected  wnth  notice,"  of  all  equitable  rights  of  which  he  would 
have  had  knowledge  had  he  made  such  investigations:  of  such 
rights  he  had  "implied  notice,"  or  "constructive  notice."  We  arrive 
then  at  this  result,  equitable  rights  will  hold  good  even  against 
one  who  has  come  to  the  legal  ownership  by  purchase  for  value,  if 
when  he  obtained  the  legal  ownership  he  had  notice  express  or 
constructive  of  those  rights. 

But  here  a  limit  w'as  reached.  Against  a  person  who  acquires 
a  legal  right  bona  fide,  for  value,  without  notice  express  or  constructive 
of  the  existence  of  equitable  rights  those  rights  are  of  no  avail.   .  .  . 

How  could  it  be  otherwise?  A  purchaser  in  good  faith  has  ob- 
tained a  legal  right.  In  a  court  of  law  that  right  is  his:  the  law  of  the 
land  gives  it  him.  On  what  ground  of  equity  are  you  going  to  take 
it  from  him?  He  has  not  himself  undertaken  any  obligation,  he 
has  not  succeeded  by  voluntary  (gratuitous)  title  to  any  obligation, 
he  has  done  no  WTong,  he  has  acted  honestly  and  with  diligence. 
Equity  cannot  touch  him,  because,  to  use  the  old  phrase,  his  con- 
science is  unaffected  by  the  trust. 

The  result  to  which  we  have  attained  might  then,  as  it  would 
seem,  be  stated  in  one  of  two  alternative  w-ays. 

(1)  Cestui  que  trust  has  rights  enforceable  against  any  person  w'ho 
has  undertaken  the  trust,  against  all  who  claim  through  or  under 
him  as  volunteers  (licirs,  devisees,  personal  representatives,  donees) 
against  his  creditors,  and  against  those  who  acquire  the  thing 
with  notice  actual  or  constructive  of  the  trust. 


ARISING  FROM  OFFICE  OR  CALLING  553 

Or  (2)  Cestui  que  trust  has  rights  enforceable  against  all  save  a 
bo7m  fide  purchaser  ("purchaser"  in  this  context  always  includes 
mortgage  e)  who  for  value  has  obtained  a  legal  right  in  the  thing 
without  notice  of  the  trust  express  or  constructive. 

Of  these  two  statements  the  second  form  is  now  the  more  popular, 
but  I  should  prefer  the  first  —  I  should  prefer  an  enumeration  of 
the  persons  against  whom  the  equitable  rights  are  good  to  a  general 
statement  that  they  are  good  against  all,  followed  by  an  exception 
of  persons  who  obtain  legal  rights  botia  fide,  for  value  and  without 
notice.  A  statement  in  the  former  fomi  is,  I  think,  preferable  be- 
cause it  puts  us  at  what  is  historically  the  right  point  of  view  — 
the  benefit  of  an  obligation  has  been  so  treated  that  it  has  come 
to  look  rather  like  a  true  proprietary  right  —  and  it  might  still 
be  rash  to  say  positively  that  purchasers  without  notice  are  the 
only  owners  against  whom  the  equitable  rights  are  invalid. 

2.     OBLIGATIONS  ARISING  FROM  OFFICE  OR  CALLING 

Wyman,  Public  Service  Corporations,   I  §§  1,   331-334. 

Sec.  1.  Public  callings  and  private  business. —  The  difference 
between  public  callings  and  private  business  is  a  distinction  in  the 
law  governing  business  relations  which  has  always  had  and  will 
always  have  most  important  consequences.  Those  in  a  public  calling 
have  always  been  under  the  extraordinary  duty  to  serve  all  comers, 
while  those  in  a  private  business  may  always  refuse  to  sell  if  they 
please.  So  great  a  distinction  as  this  constitutes  a  difference 
in  kind  of  legal  control  rather  than  merely  one  of  degree.  The  causes 
of  this  division  are,  of  course,  rather  economic  than  strictly  legal; 
and  the  relative  importance  of  these  two  classes  at  any  given  time, 
therefore,  depends  ultimately  upon  the  industrial  conditions  which 
prevail  at  that  period.  Thus  in  the  England  which  we  see  through 
the  medium  of  our  earliest  law  reports  the  medieval  system  of  es- 
tablished monopolies  called  for  the  legal  requirement  of  indiscrim- 
inate service  from  those  engaged  in  almost  all  employments.  There 
followed  in  succeeding  centuries  an  expansion  of  trade  which 
gradually  did  away  with  the  necessity  for  coercive  law.  Indeed 
in  the  early  part  of  the  nineteenth  century,  free  competition  became 
the  very  basis  of  the  social  organization,  with  the  consequence 
that  the  recognition  of  the  public  callings  as  a  class  almost  ceased. 
It  is  only  in  very  recent  years  that  it  has  again  come  to  be  recog- 
nized that  the  process  of  free  competition  fails  in  some  cases  to  secure 


554  OBLIGATIONS 

the  public  good;  and  it  has  been  reluctantly  admitted  that  State 
control  is  again  necessary  over  such  lines  of  industry  as  are  affected 
with  a  public  interest.  Thus  with  varying  importance,  the  dis- 
tinction between  the  public  callings  and  the  private  callings  has 
been  present  in  our  law  from  the  earliest  times  to  the  present  day. 
The  common  law  requiring  public  service  from  those  who  profess 
a  public  calling  has  been  ready  to  deal  with  every  public  employ- 
ment at  the  instant  of  its  recognition  as  such,  for  the  protection  of 
the  whole  people  so  far  as  it  was  generally  felt  that  such  protection 
was  necessary. 

Sec.  331.  Nature  of  the  public  duty. —  The  fundamental 
fact  in  public  employment  is  the  public  duty  which  results  in  all 
cases  from  public  profession  of  a  public  calling.  It  is  somewhat 
difficult  to  place  this  exceptional  duty  in  our  legal  system.  It  is 
like  the  contractual  obligation  in  that  it  is  an  affirmative  duty  to 
act  for  a  certain  person ;  but  it  is  different  in  that  it  does  not  depend 
upon  assent  of  the  party  charged.  It  is  like  the  obligation  in  tort 
in  that  it  is  imposed  by  law;  but  it  is  not  imposed  upon  anyone 
against  his  will  as  is  the  obligation  in  tort.  In  one  sense  the  obli- 
gation to  serve  the  public  is  voluntarily  assumed ;  and  therein  the 
public  duty  to  act  differs  from  the  typical  duty  not  to  commit  a  tort, 
which  each  person  without  his  ever  being  consulted  owes  to  all  the 
world.  And  yet  once  this  obligation  is  established  by  his  under- 
taking, his  duty  extends  to  all  within  the  profession,  however 
unwilling  he  may  be  in  a  particular  case  to  render  service.  Public 
duty  is  in  this  sense  imposed  by  law  upon  those  who  put  themselves 
into  public  service;  and  therein  very  plainly  the  situation  differs 
from  the  typical  contractual  duty  which  one  owes  only  in  partic- 
ular cases  to  the  persons  with  whom  he  has  voluntarily  negotiated 
a  previous  agreement.  If  one  may  thus  employ  the  two  traditional 
phrases,  the  duty  is  absolute  rather  than  relative.  For  it  is  a  duty 
imposed  by  law  regardless  of  dissent  in  particular  instances,  not 
one  for  which  the  actual  assent  of  the  person  obliged  is  necessary 
in  every  case.  And  yet  it  must  be  obvious  that  in  public  obligation 
we  have  an  intermediate  case  in  many  respects.  It  is  like  a  status 
which  one  is  under  no  obligation  to  enter,  except  by  his  own  free 
will ;  but,  once  having  committed  himself  to  it,  the  duties  pertaining 
to  that  status  are  devolved  upon  him  by  operation  of  law  regardless 
of  his  own  wishes.  However,  he  is  committed  to  it  no  further  than 
the  peculiar  law  governing  the  situation  requires. 


ARISING  FROM  OFFICE  OR  CALLING  555 

Sec.  332.  Obligations  of  the  subsequent  relationship. —  This 
argument  may  be  carried  still  further;  even  after  a  relationship 
has  been  established  between  the  proprietor  and  the  patron  by 
application  and  acceptance,  it  still  remains  generally  true  that  the 
resulting  obligationsare  imposed  by  law  as  the  necessary  consequence 
of  the  undertaking.  There  is  no  actual  contract  involved,  although 
there  is  a  consensual  arrangement  in  the  sense  that  the  consent  of 
the  proprietor  as  well  as  that  of  the  patron  is  needed  to  create  it. 
In  this  view  of  the  duty,  it  is  difficult  to  place  it  in  our  law.  It  is 
not  exactly  absolute,  because  it  does  not  exist  unless  it  is  assumed ; 
but  certainly  it  is  not  relative  after  it  is  once  assumed.  This  sit- 
uation is  not  without  analogies  in  our  law.  If  a  common  carrier  is 
under  special  obligation  because  he  assumes  as  such,  so  is  a  private 
bailee  governed  by  the  law  appertaining  to  his  position  as  such. 
If  a  public  servant  is  bound  to  peculiar  responsibilities  by  reason 
of  his  status,  a  private  agent  is  similarly  bound  by  special  law. 
In  all  cases  of  this  sort  the  action  against  the  person  who  has  not 
acted  toward  the  person  entitled  to  his  regard  in  accordance  with 
the  obligation  of  his  status  is  really  ex  delicto  rather  than  ex  contractu. 

Sec.  333.  The  original  obligation  is  sui  generis. —  The  truth 
of  the  matter  is  that  the  obligation  resting  upon  one  who  has 
undertaken  the  performance  of  a  public  duty  is  sui  generis.  It 
cannot  be  forced  into  the  typical  forms  of  action  without  artificiality, 
as  experience  has  show^n.  When  the  wrong  complained  of  is  the 
refusal  of  the  proprietor  of  the  business  to  render  the  serv^ice  re- 
quested, the  applicant  may  indeed  frame  a  proper  action  on  the 
case  setting  forth  the  nature  of  the  defendant's  business  and  his 
profession  of  it,  and  showing  how  he  himself  is  entitled  to  demand 
the  service,  having  complied  with  all  conditions  precedent.  The 
character  of  this  action  is  well  described  by  Chief  Justice  Biddle  in 
the  leading  American  case.  "This  action  is  brought  against  a  rail- 
road company  that  has  become  a  common  carrier,  as  is  alleged,  by 
holding  itself  before  the  public  as  such,  and  thus  has  undertaken 
the  general  public  duty  of  carrying  goods  for  all  persons  who  may 
apply,  and  necessarily  thereby  has  incurred  the  liability  incident 
to  a  breach  of  such  general  public  duty,  to  all  persons  injured  thereby 
without  any  special  contract  in  the  given  case.  The  case,  therefore, 
must  be  governed  by  the  general  law  regulating  the  remedy  for 
a  breach  of  a  public  duty." 

Sec.  334.  Nature  of  the  obligation  after  acceptance. —  When, 
however,  the  wrong  complained  of  is  some  default  of  the  proprietor 


556  OBLIGATIONS 

of  the  business  in  the  performance  of  a  ser\ice  which  is  being  rendered 
by  virtue  of  his  acceptance  of  the  appHcation  of  the  patron,  the 
situation  is  made  difficult  by  the  common  practice  of  permitting  the 
customer  in  such  a  case  to  make  this  breach  the  basis  of  either  an 
action  on  the  case  for  tort  or  an  action  in  assumpsit  apparently  like 
that  for  breach  of  contract.  Even  in  this  case  it  is  probable  that 
the  contract  form  dates  back  to  that  early  assumpsit  against  those 
who  undertake  the  performance  of  a  public  duty,  which  long  ante- 
dates theactionof  assumpsit  for  the  enforcement  of  a  private  bargain. 
In  one  of  the  leading  English  cases  where  the  action  was  for  default 
in  service  already  begun.  Chief  Justice  Dalles  said: — "The  action 
is  on  the  case,  against  a  common  carrier,  upon  whom  a  duty  is 
imposed  by  the  custom  of  the  realm,  or  in  other  words,  by  the 
common  law,  to  convey  and  carry  their  goods  and  passengers  safely 
and  securely,  so  that  by  their  negligence  or  fault  no  injury  happens. 
A  breach  of  this  duty  is  a  breach  of  the  law,  and  for  this  breach 
an  action  lies,  founded  on  the  common  law,  which  action  wants  not 
the  aid  of  a  contract  to  support  it." 

3.     OBLIGATIONS  ARISING  FROM  FIDUCIARY 
RELATIONS 

Wood  v.  Rowcliffe,  In  Chancery,  1847  (2  Phil.  382). 

The  Lord  Chancellor  said:- — ^  The  cases  which  have  been  referred 
to,  are  not  the  only  class  of  cases  in  which  this  Court  will  entertain 
a  suit  for  delivery  up  of  specific  chattels.  For,  where  a  fiduciary 
relation  subsists  between  the  parties,  whether  it  be  the  case  of  an 
agent  or  a  trustee,  or  a  broker,  or  whether  the  subject-matter  be 
stock,  or  cargoes,  or  chattels  of  whatever  description,  the  Court 
will  interfere  to  prevent  a  sale,  either  by  the  party  entrusted  with 
the  goods,  or  by  a  person  claiming  under  him,  through  an  alleged 
abuse  of  power.  In  this  case  there  is  great  reason  to  believe 
that  Elizabeth  Wright  never  had  any  right  to  the  goods  except  as  the 
plaintiff's  agent,  for  she  has  disclaimed  all  interest  in  them  by  her 
answer,  and  there  is  nothing  to  shew  how  she  had  acqtiired  any 
property  in  them.  But,  says  Rowcliffe,  I  purchased  under  circum- 
stances which  give  me  a  legal  right  to  the  goods.  If  that  be  so,  the 
equity  of  the  plaintiff  will  be  intercepted  by  a  prior  legal  right. 
In  such  a  case  this  Court  begins  by  putting  the  matter  into  a 
course  of  investigation  to  ascertain  that  legal  right.  That  is  what 
the  Vice-Chancellor  has  done.  And  in  that  respect  I  see  no  ground 
for  impeaching  the  decree. 


ARISING  FROM  FIDUCIARY  RELATIONS  557 

Story,  Equity  Jurisprudence,  I,  §  308. 

308.  It  is  undoubtedly  true,  as  has  been  said,  that  it  is  not 
upon  the  feelings  which  a  delicate  and  honorable  man  must  expe- 
rience, nor  upon  any  notion  of  discretion  to  prevent  a  voluntary 
gift  or  other  act  of  a  man  whereby  he  strips  himself  of  his  property, 
that  Courts  of  Equity  have  deemed  themselves  at  liberty  to  inter- 
pose in  cases  of  this  sort.  They  do  not  sit,  or  aftect  to  sit,  in  judg- 
ment upon  cases  as  custodes  morum,  enforcing  the  strict  rules 
of  morality.  But  they  do  sit  to  enforce  what  has  not  inaptly  been 
called  a  technical  morality.  If  confidence  is  reposed,  it  must  be 
faithfully  acted  upon,  and  preserved  from  any  intermixture  of 
imposition.  If  influence  is  acquired,  it  must  be  kept  free  from  the 
taint  of  selfish  interests,  and  cunning  and  over-reaching  bargains. 
If  the  means  of  personal  control  are  given,  they  must  be  always 
restrained  to  purposes  of  good  faith  and  personal  good.  Courts 
of  Equity  will  not  therefore  arrest  or  set  aside  an  act  or  contract 
merely  because  a  man  of  more  honor  would  not  have  entered  into 
it.  There  must  be  some  relation  between  the  parties  which  compels 
the  one  to  make  a  full  discovery  to  the  other  or  to  abstain  from  all 
selfish  projects.  But  when  such  a  relation  does  exist.  Courts  of 
Equity,  acting  upon  this  superinduced  ground  in  aid  of  general 
morals,  will  not  suffer  one  party,  standing  in  a  situation  of  which 
he  can  avail  himself  against  the  other,  to  derive  advantage  from  that 
circumstance ;  for  it  is  founded  in  a  breach  of  confidence.  The  gen- 
eral principle  which  governs  in  all  cases  of  this  sort  is,  that  if  a 
confidence  is  reposed  and  that  confidence  is  abused.  Courts  of  Equity 
will  grant  relief. 

BisPHAM,  Principles  of  Equity,  §  237. 

The  same  rule  as  that  which  exists  between  trustee  and  cestui 
que  trust  applies  to  all  persons  who  occupy  a  fiduciary,  or  quasi- 
fiduciary  relation  —  such  as  executors  or  administrators,  directors 
of  a  corporation  or  a  society,  agents,  medical  or  religious  advisers, 
husband  and  wife,  a  man  and  woman  engaged  to  be  married  —  in 
fine,  to  all  those  who  occupy  positions  of  trust  and  confidence 
towards  others.  And  the  rule  may  be  applied  to  instances  where, 
as  in  the  case  of  dealings  between  a  surviving  partner  of  a  firm  and 
the  personal  representative  of  the  deceased  partner,  although  there 
may  not  be  any  confidential  relation  which  gives  rise  to  the  existence 
and  exercise  of  undue  influence,  yet  there  may  nevertheless  exist 
(as  was  aptly  said  in  a  case  in  Virginia)  "that  dangerous  inequality 


558  OBLIGATIONS 

of  knowledge  with  respect  to  the  subject-matter"  which  will  result 
in  the  transaction  being  set  aside  if  it  does  not  turn  out,  after  jealous 
scrutim-,  to  have  been  reasonable,  fair  and  just. 

4.     OBLIGATIONS  ARISING  FROM  UNJUST 
ENRICHMENT 

Moses  v.  Macferlan,  King's  Bench,    1760  (2  Burr.  1005). 

Action  of  IndebitaHis  Assumpsit  for  Money  had  and  received  to 
the  Plaintiff's  Use. 

Lord  Mansfield:  This  kind  of  equitable  action  to  recover  back 
money  which  ought  not  in  justice  to  be  kept,  is  very  beneficial, 
and  therefore  much  encouraged.  It  lies  only  for  money  which,  ex 
aequo  et  bono,  the  defendant  ought  to  refund:  it  does  not  lie  for 
money  paid  by  the  plaintiff,  which  is  claimed  of  him  as  payable 
in  point  of  honor  and  honesty,  although  it  could  not  have  been 
recovered  from  him  by  any  course  of  law, —  as  in  payment  of  a  debt 
barred  by  the  statute  of  limitations,  or  contracted  during  his  in- 
fancy, or  to  the  extent  of  principal  and  legal  interest  upon  a  usurious 
contract,  or  for  money  fairly  lost  at  play;  because  in  all  these  cases 
the  defendant  may  retain  it  with  a  safe  conscience,  though  by 
positive  law  he  was  barred  from  recovering.  But  it  lies  for  money 
paid  by  mistake,  or  upon  a  consideration  which  happens  to  fail, 
or  for  money  got  through  imposition  (express  or  implied),  or  ex- 
tortion, or  oppression,  or  an  undue  advantage  taken  of  the  plaintiff's 
situation,  contrary  to  laws  made  for  the  protection  of  persons  under 
those  circumstances. 

In  one  word,  the  gist  of  this  kind  of  action  is,  that  the  defendant, 
upon  the  circumstances  of  the  case,  is  obliged  by  the  ties  of  natural 
justice  and  equity  to  refund  the  money. 

Therefore  we  are  all  of  us  of  opinion,  That  the  plaintiff'  might 
elect  to  waive  any  demand  upon  the  foot  of  the  indemnity,  for 
the  costs  he  had  been  put  to;  and  bring  this  action  to  recover  the 
;^6  which  the  defendant  got  and  kept  from  him  iniquitously. 

Maitland,  Equity,  82-85. 

2.  We  turn  now  to  Constructive  trusts.  Under  this  head  Mr. 
Lewin  treats  of  but  one  grand  rule.  It  is  this:  that  wherever  a 
person  clothed  with  a  fiduciary  character  gains  some  personal 
advantage  by  availing  himself  of  his  situation  as  a  trustee,  he 
becomes  a   trustee  of   the   advantage  so   gained.     The  common 


ARISING  FROM  UNJUST  ENRICHMENT  559 

illustration  of  this  is  the  renewal  by  a  true  tee  of  a  lease  that  he  holds 
on  trust.  A  leaseholder,  in  the  leading  case  Keech  v.  Sandford, 
White  and  Tudor,  Vol.  II.  693  (7th  cdn.),  bequeathed  a  leasehold 
to  a  trustee  f<^)r  an  infant.  The  lease  was  running  out.  The  trustee, 
doing  his  duty,  asked  that  it  might  be  renewed;  this  application 
was  refused;  the  landlord  did  not  want  an  infant  tenant.  The 
trustee  then  obtained  a  new  lease  in  his  own  name.  It  was  held 
that  this  new  lease  must  l:c  held  upon  trust  for  the  infant.  Lord 
King  said,  "I  very  well  see  that  if  a  trustee  on  the  refusal  to 
renew  might  have  a  lease  to  himself,  few  trust  estates  would  be 
renewed  to  a  cestui  que  use.  This  may  seem  hard  that  the  trustee 
is  the  only  person  of  all  mankind  who  might  not  have  the  lease;  but 
it  is  \'ery  proper  that  the  rule  should  be  strictly  pursued  and  not  in 
the  least  relaxed."  You  see  how  far  the  doctrine  goes.  The  land- 
lord was  under  no  duty  to  renew  this  lease  and  neither  the  trus- 
tee nor  his  cestui  que  trust  had  any  right  to  demand  its  renewal — 
but  an  old  tenant  has,  if  I  may  so  speak,  a  sort  of  goodwill  with 
his  landlord.  If  a  trustee  has  this  advantage,  even  though  the 
trust  does  not  bind  him  to  use  it,  still  if  he  does  use  it  he  must 
use  it  for  his  cestui  que  trust  and  not  for  himself.  But  though  this 
is  a  good  illustration  of  the  rule,  you  must  not  suppose  that  it  relates 
only  to  the  renewal  of  leaseholds  - — •  far  from  it,  if  by  reason  of  his 
position  that  trustee  acquires  any  advantage  of  a  valuable  kind, 
he  must  hold  it  upon  trust,  he  is  constructively  a  trustee  of  it. 

The  rule  includes  persons  who  are  not  trustees  properly  so  called, 
but  all  those  who  stand  in  what  is  called  a  fiduciary  position.  My 
land  agent,  for  instance,  is  not  a  trustee  for  me,  for  he  holds  no 
rights,  no  property,  upon  trust  for  me;  but  if  he  takes  advantage 
of  his  position  as  my  agent  to  get  some  benefit  from  a  third  person, 
then  he  is  a  trustee  of  that  benefit  for  me.  I  am  not  here  speaking 
of  cases  of  dishonesty  which  may  come  within  the  cognizance  even 
of  a  court  of  law  and  give  rise  to  an  action  of  fraud  —  but  it  is  a 
general  principle  of  equity  that  if  an  agent  acquire  any  pecuniary 
advantage  to  himself  from  third  parties  by  means  of  his  fiduciary 
character,  he  is  accountable  to  his  employer  as  a  trustee  for  the 
profit  that  he  has  made.   .  .   . 

But  the  doctrine  of  constructive  trusts  is  really  a  very  wide  one. 
It  constantly  operates  in  cases  which  we  are  apt  to  think  of  as 
being  otherwise  explained.  Put  this  case  —  T  holds  land  in  fee 
simple  upon  trust  for  S  in  fee  simple;  T  in  breach  of  trust  sells  and 
conveys  the  land  to  X;  X  at  the  time  of  the  sale  knew  of  the  trust. 


560  OBLIGATIONS 

Now  of  course  we  hold  that  S's  rights  as  cestui  que  trust  have  not 
been  destroyed  by  this  sale  and  conveyance  —  they  are  valid 
against  X.  But  why?  You  may  perhaps  say  because  S  was  in 
equity  the  owner,  tenant  in  fee  simple,  of  the  land.  That  is  one  way 
of  putting  it,  but  as  we  shall  see  hereafter  a  somewhat  dangerous 
way,  for  it  may  suggest  that  S's  equitable  rights  are  rights  in  rem, 
rights  which  cannot  possibly  be  destroyed  by  any  dealing  that  takes 
place  between  T  and  other  persons.  The  more  correct  and  the  safer 
way  of  stating  the  matter  is  that  X,  having  bought  and  obtained 
a  conveyance  of  the  subject-matter  of  the  trust,  knowing  that  the 
trust  exists,  is  made  a  trustee  for  S.  The  result  would  have  been  the 
same  if  X,  though  he  did  not  actually  know  of  the  trust  for  S,  ought, 
in  the  opinion  of  a  court  of  equity,  to  have  known  about  it;  in 
this  case  also  X,  though  he  obtains  the  legal  estate  by  conveyance 
from  T,  becomes  a  trustee  for  S.  ...  In  the  cases  that  I  have  just 
put,  X  does  not  consent  to  become  a  trustee  for  S;  on  the  contrary 
his  hope  has  been  that  he  will  be  allowed  to  enjoy  as  beneficial 
owner  the  land  that  he  has  purchased  from  T.  If  then  he  is  made 
a  trustee  this  is  not  because  he  has  agreed  or  consented  to  become 
one,  but  the  result  is  produced  by  some  rule  of  equity  which, 
will  he,  nil!  he,  makes  him  a  trustee. 

Therulesof  equity  to  which  I  refer  might,  I  think,  be  stated  thus: 
Any  one  who  comes  to  the  legal  estate  or  legal  ownership  as  the 
representative  (heir,  devisee,  executor  or  administrator)  of  a 
trustee,  or  who  comes  to  it  by  virtue  of  a  voluntary  gift  made  by  a 
trustee,  or  who  comes  to  it  with  notice  of  the  trust,  or  who  comes 
to  it  in  such  circumstances  that  he  ought  to  have  had  notice  of  the 
trust,  is  a  trustee.  It  is  not  usual  in  such  a  case  to  call  the  trust  a 
constructive  one,  still  I  want  you  to  see  that  the  man  in  question 
gets  bound  by  a  trust  without  desiring  to  become  a  trustee  and  even 
although  he  has  every  wish  to  escape  such  an  obligation.  Put  a 
simple  case:  T  is  trustee  in  fee  simple  for  A  in  fee  simple;  T  dies; 
formerly  (as  I  shall  explain  next  time)  the  legal  estate  would  have 
descended  to  T's  heirs  or  passed  under  his  will  to  a  devisee,  now- 
a-days  it  will  pass  to  T's  executor  or  administrator,  his  personal 
representative.  Now  the  personal  representative,  Q  let  us  call 
him,  is  undoubtedly  bound  by  the  trust.  Why  so?  Because  he 
has  consented  to  accept  it.  No,  it  is  very  possible  that  when  he 
proved  T's  will  or  took  out  letters  of  administration  to  T's  estate 
he  knew  absolutely  nothing  of  the  trust.  Still  he  is  bound  by  it. 
Why  is  he  bound?  Because  he  comes  to  it  as  the  trustee's  repre- 
sentative. 


ASSIGNMENT  561 

Now  it  is  usual,  and  I  think,  ^•ery  proper,  to  deal  with  the  rules 
about  this  matter  in  a  context  other  than  the  present.  They  come 
in  answer  to  the  question  "What  are  the  nature  of  the  cestui  que 
trust's  rights  - —  against  what  persons  or  classes  of  persons  can  these 
equitable  rights  be  enforced?"  Still,  I  want  you  to  see  that  really 
they  might  also  be  treated  from  our  present  point  of  view.  If  you 
are  going  to  enforce  the  rights  of  a  cestui  que  trust  against  any  person, 
X,  you  must  be  prepared  to  show  that  in  one  way  or  another  X 
has  become  a  trustee  for  that  cestui  que  trust.  That  is  why  you 
cannot  enforce  the  trust  against  the  ^owa /fJe  purchaser  for  value 
who  has  no  notice,  express  or  implied,  of  the  trust,  and  who  obtains 
the  legal  estate. 


5.    ASSIGNMENT 

Blackstone,  Commentaries,  II,  442. 

First,  then  it  is  an  agreement,  a  mutual  bargain  or  convention; 
and  therefore  there  must  at  least  be  two  contracting  parties  of 
sufficient  ability  to  make  a  contract;  as  where  A  contracts  with  B 
to  pay  him  100  /.  and  thereby  transfers  a  property  in  such  sum  to 
B.  Which  property  is,  however,  not  in  possession,  but  in  action 
merely;  and  recoverable  by  suit  at  law;  wherefore  it  could  not  be 
transferred  to  another  person  by  the  strict  rules  of  the  ancient 
common  law;  for  no  chose  in  action  could  be  assigned  or  granted 
over,  because  it  was  thought  to  be  a  great  encouragement  to  liti- 
giousness  if  a  man  were  allowed  to  make  over  to  a  stranger  his  right 
of  going  to  law.  But  this  nicety  is  now  disregarded:  though,  in 
compliance  with  the  ancient  principle,  the  form  of  assigning  a 
chose  in  action  is  in  the  nature  of  a  declaration  of  trust,  and  an 
agreement  to  permit  the  assignee  to  make  use  of  the  name  of  the 
assignor,  in  order  to  recover  the  possession.  And  therefore,  when 
in  common  acceptation  a  debt  or  bond  is  said  to  be  assigned 
over,  it  must  still  be  sued  in  the  original  creditor's  name;  the  person 
to  whom  it  is  transferred  being  rather  an  attorney  than  an  assignee. 
But  the  king  is  an  exception  to  this  general  rule,  for  he  might 
always  either  grant  or  receive  s.  chose  in  action  by  assignment: 
and  our  courts  of  equity,  considering  that  in  a  commercial  country 
almost  all  personal  property  must  necessarily  lie  in  contract,  will 
protect  the  assignment  of  a  chose  in  action  as  much  as  the  law  will 
that  of  a  chose  in  possession. 


562  OBLIGATIONS 

Blackstone,  Commentaries,  II,  468. 

In  the  first  place,  then,  the  payee,  or  person  to  whom  or  whose 
order  such  bill  of  exchange  or  promissory  note  is  payable,  may  by 
endorsement,  or  writing  his  name  in  dorso,  or  on  the  back  of  it, 
assign  over  his  whole  property  to  the  bearer,  or  else  to  another 
person  by  name,  either  of  whom  is  then  called  the  endorsee;  and 
he  may  assign  the  same  to  another,  and  so  on  in  infinitum..  And  a 
promissory  note,  payable  to  A  or  hearer,  is  negotiable  by  any  bearer 
of  it. 

Negotiable  Instruments  Law,  §§  51,  52. 

Sec.  5L  The  holder  of  a  negotiable  instrument  may  sue  thereon 
in  his  own  name;  and  payment  to  him  in  due  course  discharges  the 
instrument.   .   .   . 

Sec.  52.  A  holder  in  due  course  is  a  holder  who  has  taken  the 
instrument  under  the  following  conditions:  — 

1.  That  it  is  complete  and  regular  upon  its  face; 

2.  That  he  became  the  holder  of  it  before  it  was  overdue,  and 
without  notice  that  it  had  been  previously  dishonored,  if  such  was 
the  fact; 

3.  That  he  took  it  in  good  faith  and  for  value; 

4.  That  at  the  time  it  was  negotiated  to  him  he  had  no  notice 
of  any  infirmity  in  the  instrument  or  defect  in  the  title  of  the 
person  negotiating  it. 

New  York  Code  of  Civil  Procedure  (1848)  §§111,  112. 

Sec.  111.  Every  action  must  be  prosecuted  in  the  name  of  the 
real  party  in  interest.   .  .  . 

Sec.  112.  In  the  case  of  an  assignment  of  a  thing  in  action,  the 
action  by  the  assignee  shall  be  without  prejudice  to  any  set  off  or 
other  defense  existing  at  the  time  of  or  before  notice  of  the  assign- 
ment ;  but  this  section  shall  not  apply  to  a  negotiable  promissory 
note  or  bill  of  exchange,  transferred  in  good  faith,  and  upon  good 
consideration,  before  due. 

Supreme  Court  of  Judicature  Act  (1873),  §  26,  par.  6. 

Any  absolute  assignment,  by  writing  under  the  hand  of  the 
assignor  (not  purporting  to  be  by  way  of  charge  only),  of  any  debt 
or  other  legal  chose  in  action,  of  which  express  notice  in  writing 
shall  have  been  given  to  the  debtor,  trustee,  or  other  person  from 
whom  the  assignor  would  have  been  entitled  to  receive  or  claim 


EXTINCTION  OF  OBLIGATIONS  563 

such  debt  or  chose  in  action,  shall  be,  and  be  deemed  to  have  been 
effectual  in  law  (subject  to  all  equities  which  would  have  been 
entitled  to  priority  o\er  the  right  of  the  assignee  if  this  Act  had 
not  passed),  to  pass  and  transfer  the  legal  right  to  such  debt  or 
diose  in  action  from  the  date  of  such  notice,  and  all  legal  and  other 
remedies  for  the  same,  and  the  power  to  gi\e  a  good  discharge  for 
the  same,  without  the  concurrence  of  the  assignor.  .   .  . 


6.     EXTINCTION  OF  OBLIGATIONS 

Holland,  Jurisprudence,  Chap.  XII. 

We  have  already  had  occasion  to  mention  incidentally  some  of 
the  modes  in  which  the  obligations  resulting  from  particular  con- 
tracts are  dissolved.  It  will,  however,  be  necessary  to  consider, 
from  a  more  general  point  of  view,  the  circumstances  which  termi- 
nate rights  ''in  personam.''  They  may,  perhaps,  be  classified 
under  the  following  heads:  i.  Performance;  ii.  Events  excusing 
performance;  iii,  Substitutes  for  performance;  iv.  Release  of  per- 
formance;   V,   Non-performance. 

i.  Performance  of  the  acts  to  which  the  person  of  incidence  is 
obliged  is  the  natural  and  proper  mode  by  which  he  becomes  loosed 
from  the  obligation  of  performing  them. 


ii.     Events  excusing  performance. 

1.  As  a  general  rule,  at  any  rate  in  English  law,  "subsequent 
impossibility"  is  no  excuse  for  non-performance;  but  to  this  there 
are  several  exceptions: 

(a)  When  the  act  due  is  intimately  dependent  on  the  individuality 
of  either  party,  the  right,  or  liability,  to  its  performance  must 
necessarily  be  extinguished  by  his  death.  It  would  be  ob\'iously 
absurd  to  make  the  executors  of  the  Admirable  Crichton  respon- 
sible for  his  non-performance  of  a  contract  to  marry,  or  those  of 
Raphael  for  his  inability  to  return  to  life  and  finish  the  "Trans- 
figuration."    Serious  illness  may  have  a  similar  effect. 

(b)  When  the  performance  has  reference  to  a  specific  thing,  its 
destruction,  without  fault  of  the  parties,  puts  an  end  to  the  right. 
So  when  the  proprietors  of  a  place  of  public  entertainment  had 
agreed  to  let  it  on  a  certain  day,  before  which  it  was  burnt  down, 
they  w^ere  held  to  be  free  from  their  engagement. 


564  OBLIGATIONS 

(c)  A  change  in  the  law,  or  the  outbreak  of  war  between  the 
countries  of  the  contracting  parties,  may  operate  to  make  perform- 
ance a  "legal  impossibility." 

3.  "Confusio,"  or  "merger,"  i.e.,  the  union  in  one  person  of  the 
characters  of  debtor  and  creditor,  is  sometimes  held  to  extinguish, 
sometimes  only  to  suspend,  the  operation  of  the  right. 

4.  Bankruptcy  has  already  been  mentioned  more  than  once 
as  one  of  the  events  which  give  rise  to  a  universal  succession.  An 
order  of  discharge  has  the  effect  of  freeing  the  bankrupt,  either 
wholly  or  partially,  according  to  the  special  provisions  of  the  law 
under  which  he  lives,  from  the  claims  to  which  he  was  previously 
liable. 

iii.  Among  substitutes  for  performance,  the  following  are  the 
more  important. 

2.  "Compromise,"  "transactio,"  which  may  be  analyzed  into  a 
part  payment,  coupled  with  a  promise  not  to  claim  the  residue, 
can  only  operate  as  a  discharge  of  the  whole  debt  when  the  sub- 
sidiary promise  is  made  in  such  a  form,  or  under  such  circum- 
stances that  it  might  equally  well  have  been  a  good  discharge 
without  any  part  payment.  So  in  an  old  English  case  it  was  re- 
solved "that  payment  of  a  lesser  sum  on  the  day,  in  satisfaction 
of  a  greater,  cannot  be  a  satisfaction  to  the  plaintiff  for  a  greater 
sum.  When  the  whole  sum  is  due,  by  no  intendment  the  accept- 
ance of  parcel  can  be  a  satisfaction  to  the  plaintiff." 

3.  It  was  long  debated  but  finally  admitted  by  the  Roman 
lawyers  that  a  "datio  in  solutum,''  or  giving  and  acceptance  of 
something  other  than  the  thing  due,  and  in  place  of  it,  discharges 
the  obligation.  So  in  English  law  it  is  laid  down  that  if  a  debtor 
pays  to  his  creditor  "a  horse,  or  a  cup  of  silver,  or  any  such  other 
thing,  in  full  satisfaction  of  the  money,  and  the  other  receiveth  it, 
this  is  good  enough,  and  as  strong  as  if  he  had  received  the  sum  of 
money,  though  the  horse  or  the  other  thing  were  not  of  the  twen- 
tieth part  of  the  value  of  the  sum  of  money,  because  that  the  other 
hath  accepted  it  in  full  satisfaction." 

4.  "Set-off,"  "compensatio,"  defined  by  Modestinus  as  "debiti 
et  crediti  inter  se  contributio,"  has  been  sometimes  regarded  as 
rateably  extinguishing  a  claim   "ipso  jure,''   sometimes  only  as 


EXTINCTION  OF  OBLIGATIONS  565 

foundation  for  a  plea,  to  which  a  Court  may  give  regard  in  award- 
ing judgment  if  the  claim  be  sued  upon.  .  .  .  The  applicability 
of  set-off  has  alw^ays  been  limited  to  debts  of  a  readily  calculable 
kind,  and  between  the  parties  in  the  same  rights.  The  doctrine 
was  unknown  to  the  English  common  law,  upon  which  it  was 
grafted  for  the  first  time  by  2  Geo.  II.  c.  22. 

5.  The  substitution  of  a  new  obligation  for  the  old  one  by  mutual 
consent  is  a  species  of  that  mode  of  discharging  an  obligation  known 
to  the  Romans  as  "novatio." 

iv.  The  mere  agreement  of  the  parties  to  a  discharge  of  the  lia- 
bility is  not  always  sufficient.  The  principle  of  Roman  law  was 
that  every  contract  should  be  dissolved  in  the  same  manner  in  which 
it  had  been  made.  .  .  . 

English  law  requires  that  a  contract  made  under  seal  should  be 
discharged  in  like  manner.  The  effect  of  a  mere  agreement  to  dis- 
charge a  consensual  contract  depends  upon  the  doctrine  of  "con- 
sideration." If  such  a  contract  be  still  executory,  the  mutual 
release  from  its  liabilities  is  a  good  consideration  to  each  party  for 
surrendering  his  rights  under  it.  If  it  has  been  executed  on  one 
side  it  can  be  discharged  only  by  an  agreement  founded  on  some 
new  consideration,  or  by  a  deed,  which  is  sometimes  said  to  "import 
a  consideration."  The  rule  does  not,  however,  apply  to  a  dis- 
charge of  promissory  notes  or  bills  of  exchange,  which  doubtless 
owe  their  irnmunity  from  it  to  deriving  their  origin  from  the  "law 
merchant." 

v.  Non-performance  by  one  party  to  a  contract  often  puts  an 
end  to  the  rights  which  he  enjoys  under  it  against  the  other  party. 
And  some  acts  short  of  non-performance  may  have  the  same  effect. 
Thus  if  one  party  by  his  own  act  disables  himself  from  performance, 
or  announces  that  he  has  no  intention  of  performing,  the  other  side 
is  in  many  cases  entitled  to  treat  what  has  occurred  as  a  "breach 
of  contract  by  anticipation,"  and  the  contract  as  being  therefore 
no  longer  binding. 


566  PROPERTY 


CHAPTER  XII 

PROPERTY  1 

1.   NATURE  OF  PROPERTY  AND  POSSESSION 

Markby,  Elements  of  Law,  §§  307-319. 

307.  If  we  consider  any  material  object,  such  as  a  field,  a  piece 
of  furniture,  a  sum  of  money,  or  a  sack  of  wheat,  we  shall  see  that 
various  rights  exist  with  respect  to  it.  There  is  the  right  to  walk 
about  the  field,  to  till  it,  to  allow  others  to  till  it,  and  so  forth ;  there 
is  the  right  to  use  the  piece  of  furniture,  to  repair  it,  to  break  it  up, 
to  sell  it;  there  is  the  right  to  spend  the  money,  to  hoard  it,  to 
give  it  away;  there  is  the  right  to  grind  the  wheat,  to  make  it  into 
bread,  to  sow  it  for  next  year's  crop,  and  so  forth. 

308.  All  these  rights,  which  I  have  spoken  of,  are  rights  over  the 
thing  available  against  the  world  at  large:  jura  in  re  and  in  rem. 

309.  If  all  the  rights  over  a  thing  were  centred  in  one  person, 
that  person  would  be  the  owner  of  the  thing:  and  ownership  would 
express  the  condition  of  such  a  person  in  regard  to  that  thing.  But 
the  innumerable  rights  over  a  thing  thus  centred  in  the  owner  are 
not  conceived  as  separately  existing..  The  owner  of  land  has  not 
one  right  to  walk  upon  it,  and  another  to  till  it ;  the  owner  of  a  piece 
of  furniture  has  not  one  right  to  repair  it,  and  another  right  to  sell 
it:  all  the  various  rights  which  an  owner  has  over  a  thing  are  con- 
ceived as  merged  in  one  general  right  of  ownership. 

310.  A  person  in  whom  all  the  rights  over  a  thing  were  centred, 
to  the  exclusion  of  every  one  else,  would  be  called  the  absolute  and 
exclusive  owner.  This  means  that  no  one  has  any  right  over  the 
thing  except  himself.  It  does  not  mean  that  he  may  exercise  his 
ownership  in  accordance  with  his  uncontrolled  fancy.  In  the 
exercise  of  all  legal  rights,  whether  of  ownership  or  of  any  other  kind, 

^Salmond,  Jurisprudence,  §§152-163;  Holland,  Jurisprudence,  Chap.  XI,  Sub- 
div.  V;  Markby,  Elements  of  Law,  Chaps.  VIII-XIII;  Pollock,  First  Book  of 
Jurisprudence,  Pt.  I,  Chap.  VII;  Digby,  History  of  the  Law  of  Real  Property; 
Maine,  Ancient  Law,  Chap.  VIII;  Kirchwey,  Readings  on  the  Law  of  Real 
Property. 


NATURE  AND  POSSFSSION  567 

each  of  us  is  under  a  certain  control  arising  out  of  the  relation  in 
which  we  stand  to  the  ruling  power  or  to  other  members  of  the  society 
to  which  we  belong.  I  cannot  exercise  my  rights  in  such  a  way 
as  to  infringe  the  law  or  the  rights  of  others.  To  take  an  example: 
I  am  the  absolute  and  exclusi\'e  owner  of  a  large  quantity  of  char- 
coal, sulphur  and  saltpetre.  I  am  still  the  absolute  owner,  although 
the  law  forbids  me  to  mix  them  together  and  keep  them  in  my  house. 
No  one  by  reason  of  that  restriction  has  a  jus  in  re  over  them.  Nor 
is  my  ownership  affected.  The  restriction  is  on  my  liberty  of  action 
only. 

311.  But  if  I  have  pledged  the  saltpetre  as  security  for  a  loan, 
then  the  pledgee  has  a  jus  hi  re  over  it;  and  my  right  to  dispose 
of  it  is  restricted,  not  by  a  mere  restriction  on  my  liberty  of  action, 
but  because  one  or  more  of  the  rights  of  ownership  have  been 
detached  and  given  to  another. 

312.  So  if  I  grant  a  right  of  way  to  a  neighbor  across  my  land, 
or  if  my  neighbor  has  a  right  to  graze  his  cattle  there,  he  has  a  jus 
in  re  over  my  land,  and  certain  rights  have  been  detached  from  my 
ownership  and  transferred  to  him. 

313.  Absolute  and  exclusive  ownership  is  rare:  and  yet  I  do  not 
think  it  is  possible  to  explain  what  is  meant  by  ownership  except 
by  starting  with  this  abstract  conception  of  it.  It  is  to  this  that 
we  alw^ays  revert  when  we  are  trying  to  form  a  conception  of  owner- 
ship. 

314.  Ownership,  as  I  have  said,  is  conceived  as  a  single  right, 
and  not  as  an  aggregate  of  rights.  To  use  a  homely  illustration,  it 
is  no  more  conceived  as  an  aggregate  of  distinct  rights  than  a  bucket 
of  water  is  conceived  as  an  aggregate  of  separate  drops.  Yet,  as  we 
may  take  a  drop  or  several  drops  from  the  bucket,  so  we  may  detach 
a  right  or  several  rights  from  ownership. 

315.  The  distribution  of  rights  detached  fiom  ownership  which 
we  actually  find  in  use  is  very  extensive.  Thus,  it  would  be  no 
strange  thing  to  find  a  piece  of  land,  and  that  A  had  a  right  to  till  it, 
B  a  right  to  walk  across  it,  C  a  right  to  draw  water  from  a  spring 
in  it,  Da  right  to  turn  his  cattle  on  it  to  graze,  E  a  right  to  take 
tithe  on  it,  F  a  right  to  hold  it  as  security  for  a  debt,  and  yet  possibly 
no  one  of  these  persons  would  be  considered  as  the  owner. 

316.  In  such  a  case  as  this  the  owner  would  be  stripped  nearly 
bare  of  his  rights,  and  it  may  seem,  at  first  sight,  purely  arbitrary 
to  continue  to  call  such  a  person  the  owner.  But  this  is  not  so. 
Though  his  ownership  is  greatly  reduced,  he  is  still  in  essentially  a 


5G8  PROPERTY 

different  position  from  that  of  any  other  person.  So  long  as  the 
rights  I  have  mentioned  are  in  tlie  hands  of  any  other  person,  they 
have  a  separate  existence,  but  as  soon  as  they  get  back  into  the 
hands  of  the  person  from  whom  they  are  derived,  as  soon  as  they 
are  "at  home"  as  it  were,  they  lose  their  separate  existence,  and 
merge  in  the  general  right  of  ownership.  They  may  be  again 
detached,  but  by  the  detachment  a  new  right  is  created. 

317.  However  numerous  and  extensive  may  be  the  detached 
rights,  however  insignificant  may  be  the  residue,  it  is  the  holder  of 
this  residuary  right  whom  we  always  consider  as  the  owner.  An 
owner  might,  therefore,  be  described  as  the  person  in  whom  the 
rights  o^'er  a  thing  do  not  exist  separately,  but  are  merged  in  one 
general  right. 

318.  Or  an  owner  might  be  described  as  the  person  whose 
rights  o\-er  a  thing  are  only  limited  by  the  rights  which  have  been 
detached  from  it. 

319.  This  residuary  right,  even  in  its  slenderest  form,  is  of 
great  legal  importance.  It  enables  the  holder  of  it  to  assume  a 
position  of  great  advantage  in  all  legal  disputes.  All  (he  can  say) 
belongs  to  me  which  cannot  be  shown  to  belong  to  any  one  else. 
Every  one  who  intermeddles  is  an  intruder,  unless  he  can  establish 
his  right  to  do  so.  Everybody  else  must  take  just  what  he  is  entitled 
to  and  no  more.     The  presumption  is  always  in  favour  of  the  owner. 

Salmond,  Jurisprudence,  §  106. 

"Possession,"  says  Ihering,  "is  the  objective  realisation  of  owner- 
ship." It  is  in  fact  what  ownership  is  in  right.  Possession  is  the 
de  facto  exercise  of  a  claim;  ownership  is  the  de  jure  recognition  of 
one.^  A  thing  is  owned  by  me  when  my  claim  to  it  is  maintained 
by  the  will  of  the  state  as  expressed  in  the  law;  it  is  possessed  by 
me,  when  my  claim  to  it  is  maintained  by  my  own  self-assertive 
will.  Ownership  is  the  guarantee  of  the  law;  possession  is  the 
guarantee  of  the  facts.  It  is  well  to  have  both  forms  of  security 
if  possible;  and  indeed  they  normally  co-exist.  But  where  there 
is  no  law,  or  where  the  law  is  against  a  man,  he  must  content  him- 
self with  the  precarious  security  of  the  facts.  Even  when  the  law 
is  in  one's  favour,  it  is  well  to  have  the  facts  on  one's  side  also. 
Beati  possidentes.     Possession,  therefore,  is  the  de  facto  counterpart 

^Holmes,  Common  Law,  Lect.  VI;  Salmond,  Jurisprudence,  §§93-107;  Pol- 
lock Si.  Wright,  Possession  (Introduction). 


NATURE  AND  POSSESSION  569 

of  ownership.  It  is  the  external  form  in  which  rightful  claims 
normally  manifest  themselves.  The  separation  of  these  two  things 
is  an  exceptional  incident,  due  to  accident,  wrong,  or  the  special 
nature  of  the  claims  in  question.  Possession  without  ownership 
is  the  body  of  fact,  uninformed  by  the  spirit  cf  right  which  usually 
accompanies  it.  Ownership  without  possession  is  right,  unac- 
companied by  that  en^'ironment  of  fact  in  which  it  normally  realises 
itself.  The  two  things  tend  mutually  to  coincidence.  Ownership 
strives  to  realise  itself  in  possession,  and  possession  endeavors  to 
justify  itself  as  ownership.  The  law  of  prescription  determines  the 
process  by  which,  through  the  influence  of  time,  possession  without 
title  ripens  into  ownership,  and  ownership  without  possession 
withers  away  and  dies. 

Speaking  generally,  ownership  and  possession  have  the  same 
subject-matter.  Whatever  may  be  owned  may  be  possessed,  and 
whatever  may  be  possessed  may  be  owned.  This  statement,  how- 
ever, is  subject  to  important  qualifications.  There  are  claims  which 
may  be  realised  and  exercised  in  fact  without  receiving  any  recog- 
nition or  protection  from  the  law,  there  being  no  right  \'ested  either 
in  the  claimant  or  in  any  one  else.  In  such  cases  there  is  possession 
without  ownership.  For  example,  men  might  possess  copyrights, 
trademarks,  and  other  forms  of  monopoly,  even  though  the  law 
refused  to  defend  these  interests  as  legal  rights.  Claims  to  them 
might  be  realised  de  facto,  and  attain  some  measure  of  security  and 
value  from  the  facts,  without  any  possibility  of  support  from  the 
law. 

Conversely,  there  are  many  rights  which  can  be  owned,  but  which 
are  not  capable  of  being  possessed.  They  are  those  which  may  be 
termed  transitory.  Rights  which  do  not  admit  of  continuing  exer- 
cise do  not  admit  of  possession  either.  They  cannot  be  exercised 
without  being  thereby  wholly  fulfilled  and  destroyed;  therefore 
they  cannot  be  possessed.  A  creditor,  for  example,  does  not  possess 
the  debt  that  is  due  to  him ;  for  this  is  a  transitory  right  which  in 
its  very  nature  cannot  survi\-e  its  exercise.  But  a  man  may  possess 
an  easement  over  land,  because  its  exercise  and  its  continued  exis- 
tence are  consistent  with  each  other.  It  is  for  this  reason  that 
obligations  generally  (that  is  to  say,  rights  in  personam  as  opposed 
to  rights  in  rem)  do  not  admit  of  possession.  It  is  to  be  remembered, 
however,  that  repeated  exercise  is  equivalent  in  this  respect  to  con- 
tinuing exercise.  I  may  possess  a  right  of  way  through  repeated 
acts  of  use,  just  as  I  may  possess  a  right  of  light  or  support  through 


570  PROPERTY 

continuous  enjoyment.  Therefore,  even  obligations  admit  of  pos- 
session, provided  that  they  are  of  such  a  nature  as  to  involve  a 
series  of  repeated  acts  of  performance.  We  may  say  that  a  landlord 
is  in  possession  of  his  rents,  an  annuitant  of  his  annuity,  a  bond- 
holder of  his  interest,  or  a  master  of  the  services  of  his  servant. 


2.    THINGS  INCAPABLE  OF  OWNERSHIP 

Blackstone,  Commentaries,  II,  14-15. 

But,  after  all,  there  are  some  few  things,  which,  notwithstanding 
the  general  introduction  and  continuance  of  property,  must  still 
unavoidably  remain  in  common;  being  such  wherein  nothing  but 
an  usufructuary  property  is  capable  of  being  had;  and  therefore 
they  still  belong  to  the  first  occupant,  during  the  time  he  holds 
possession  of  them,  and  no  longer.  Such  (among  others)  are  the 
elements  of  light,  air,  and  water;  which  a  man  may  occupy  by 
means  of  his  windows,  his  gardens,  his  mills,  and  other  conveniences: 
such  also  are  the  generality  of  those  animals  which  are  said  to  be 
ferae  naturae,  or  of  a  wild  and  untamable  disposition;  which  any 
man  may  seize  upon  and  keep  for  his  own  use  and  pleasure.  All 
these  things,  so  long  as  they  remain  in  possession,  every  man  has 
a  right  to  enjoy  without  disturbance;  but  if  once  they  escape  from 
his  custody,  or  he  voluntarily  abandons  the  use  of  them,  they  return 
to  the  common  stock,  and  any  man  else  has  an  equal  right  to  seize 
and  enjoy  them  afterwards. 

Again:  there  are  other  things  in  which  a  permanent  property 
may  subsist,  not  only  as  to  the  temporary  use,  but  also  the  solid 
substance;  and  which  yet  would  be  frequently  found  without  a 
proprietor,  had  not  the  wisdom  of  the  law  provided  a  remedy  to 
obviate  this  inconvenience.  Such  are  forests  and  other  waste 
grounds,  which  were  omitted  to  be  appropriated  in  the  general 
distribution  of  lands;  such  also  are  wrecks,  estrays,  and  that  species 
of  wild  animals  which  the  arbitrary  constitutions  of  positive  law 
have  distinguished  from  the  rest  by  the  well-known  appellation  of 
game.  With  regard  to  these  and  some  others,  as  disturbances  and 
quarrels  would  frequently  arise  among  individuals,  contending 
about  the  acquisition  of  this  species  of  property  by  first  occupancy, 
the  law  has  therefore  wisely  cut  up  the  root  of  dissension,  by  vesting 
the  things  themselves  in  the  sovereign  of  the  state;  or  else  in  his 
representatives  appointed  and  authorized  by  him.  .  .  . 


KINDS  OF  PROPERTY  571 


3.     KINDS  OF  PROPERTY  ^ 

Blackstone,  Commentaries,  II,  15-19,  20-21,  384-387. 

The  objects  of  dominion  or  property  are  things,  as  contradis- 
tinguished from  persons:  and  things  are  by  the  law  of  England 
distributed  into  two  kinds;  things  real  and  things  personal.  Things 
real  are  such  as  are  permanent,  fixed,  and  immovable,  which  cannot 
be  carried  out  of  their  place;  as  lands  and  tenements:  things  personal 
are  goods,  money,  and  all  other  movables;  which  may  attend  the 
owner's  person  wherever  he  thinks  proper  to  go. 

First,  with  regard  to  their  several  sorts  or  kinds,  things  real  are 
usually  said  to  consist  in  lands,  tenements,  or  hereditaments.  Land 
comprehends  all  things  of  a  permanent,  substantial  nature;  being 
a  word  of  a  very  extensive  signification,  as  will  presently  appear 
more  at  large.  Tenement  is  a  word  of  still  greater  extent,  and 
though  in  its  vulgar  acceptation  it  is  only  applied  to  houses  and 
other  buildings,  yet,  in  its  original,  proper,  and  legal  sense,  it 
signifies  everything  that  may  be  holden,  provided  it  be  of  a  per- 
manent nature;  whether  it  be  of  a  substantial  and  sensible,  or  of 
an  unsubstantial  ideal  kind.  Thus  liberum  tenementum,  frank  tene- 
ment, or  freehold,  is  applicable  not  only  to  lands  and  other  solid 
objects,  but  also  to  ofiices,  rents,  commons,  and  the  like;  and,  as 
lands  and  houses  are  tenements,  so  is  an  advowson  a  tenement; 
and  a  franchise,  an  office,  a  right  of  common,  a  peerage,  or  other 
property  of  the  like  unsubstantial  kind,  are  all  of  them,  legally 
speaking,  tenements.  But  an  hereditament,  says  Sir  Edward  Coke, 
is  by  much  the  largest  and  most  comprehensive  expression:  for 
it  includes  not  only  lands  and  tenements,  but  whatsoever  may  be 
inherited,  be  it  corporeal  or  incorporeal,  real,  personal,  or  mixed. 
Thus  an  heirloom,  or  implement  of  furniture  which  by  custom 
descends  to  the  heir  together  with  a  house,  is  neither  land,  nor 
tenement,  but  a  mere  movable:  yet  being  inheritable,  is  comprised 
under  the  general  word  hereditament;  and  so  a  condition,  the  bene- 
fit of  which  may  descend  to  a  man  from  his  ancestor,  is  also  an 
hereditament. 

Hereditaments  then,  to  use  the  largest  expression,  are  of  two 
kinds,  corporeal  and    incorporeal.     Corporeal  consist  of  such  as 

^Compare  the  archaic  classification  in  Roman  law,  Sohm,  Institutes  of  Roman 
Law  (Ledlie's  transl.),  2  ed.  §  59,  III. 


572  PROPERTY 

affect  the  senses;  such  as  may  be  seen  and  handled  by  the  body: 
incorporeal  are  not  the  object  of  sensation,  can  neither  be  seen  nor 
handled,  are  creatures  of  the  mind,  and  exist  only  in  contemplation. 

Corporeal  hereditaments  consist  wholly  of  substantial  and  per- 
manent objects;  all  which  may  be  comprehended  under  the  general 
denomination  of  land  only.  For  land,  says  Sir  Edward  Coke, 
comprehendeth,  in  its  legal  signification,  any  ground,  soil,  or  earth 
whatsoever;  as  arable,  meadows,  pastures,  woods,  moors,  waters, 
marshes,  furzes,  and  heath.  It  legally  includeth  also  all  castles, 
houses,  and  other  buildings:  for  they  consist,  said  he,  of  two  things; 
land,  which  is  the  foundation,  and  structure  thereupon;  so  that  if  I 
convey  the  land  or  ground,  the  structure  or  building  passeth  there- 
with. It  is  observable  that  ivater  is  here  nientioned  as  a  species  of 
land,  which  may  seem  a  kind  of  solecism ;  but  such  is  the  language 
of  the  law :  and  therefore  I  cannot  bring  an  action  to  recover  posses- 
sion of  a  pool  or  other  piece  of  water  by  the  nam.e  of  water  only; 
either  by  calculating  its  capacity,  as,  for  so  many  cubical  yards;  or 
by  superficial  measure,  for  twenty  acres  of  water;  or  by  general 
description,  as  for  a  pond,  a  watercourse,  or  a  rivulet:  but  I  must 
bring  my  action  for  the  land  that  lies  at  the  bottom,  and  must  call 
it  twenty  acres  of  land  covered  with  water.  For  water  is  a  movable, 
wandering  thing,  and  must  of  necessity  continue  common  by  the 
law  of  nature;  so  that  I  can  only  have  a  temporary,  transient, 
usufructuary,  property  therein:  wherefore,  if  a  body  of  water  runs 
out  of  my  pond  into  another  man's  I  ha\'e  no  right  to  reclaim  it. 
But  the  land,  which  that  water  covers,  is  permanent,  fixed,  and 
immovable:  and  therefore  in  this  I  may  ha\e  a  certain  substantial 
property;   of  which  the  law  will  take  notice,  and  not  of  the  other. 

Land  hath  also,  in  its  legal  signification,  an  indefinite  extent,  up- 
wards as  well  as  downwards.  Cujus  est  solum,  ejus  est  usque  ad 
caelnm,  is  the  maxim  of  the  law;  upwards,  therefore,  no  man  may 
erect  any  building,  or  the  like,  to  overhang  another's  land:  and 
downwards,  whatever  is  in  a  direct  line,  between  the  surface  of 
any  land  and  the  centre  of  the  earth,  belongs  to  the  owner  of  the 
surface;  as  is  every  day's  experience  in  the  mining  countries.  So 
that  the  word  "land"  includes  not  only  the  face  of  the  earth,  but 
every  thing  under  it,  or  over  it.  And  therefore,  if  a  man  grants 
all  his  lands,  he  grants  thereby  all  his  mines  of  metal  and  other 
fossils,  his  woods,  his  waters,  and  his  houses,  as  well  as  his  fields  and 
meadows.  Not  but  the  particular  names  of  the  things  are  equally 
sufficient  to  pass  them,  except  in  the  instance  of  water;  by  a  grant 


KINDS  OF  PROPERTY  573 

of  which,  nothing  passes  but  a  right  of  fishing:  but  the  capital  dis- 
tinction is  this,  that  by  the  name  of  a  castle,  messuage,  toft,  croft, 
or  the  like,  nothing  else  will  pass,  except  what  falls  with  the  utmost 
propriety  under  the  term  made  use  of;  but  by  the  name  of  land, 
which  is  nomen  generali ssimiim ;  every  thing  terrestrial  will  pass. 

An  incorporeal  hereditament  is  a  right  issuing  out  of  a  thing 
corporate  (whether  real  or  personal)  or  concerning,  or  annexed  to, 
or  exercisal)le  within,  the  same.  It  is  not  the  thing  corporate  itself, 
which  may  consist  in  lands,  houses,  jewels,  or  the  like;  but  some- 
thing collateral  thereto,  as  a  rent  issuing  out  of  those  lands  or 
houses,  or  an  office  relating  to  those  jewels.  In  short,  as  the 
logicians  speak,  corporeal  hereditaments  are  the  substance,  which 
may  be  always  seen,  always  handled:  incorporeal  hereditaments 
are  but  a  sort  of  accidents,  which  inhere  in  and  are  supported  by 
that  substance;  and  may  belong  or  not  belong  to  it,  without  any 
visible  alteration  therein.  Their  existence  is  merely  in  idea  and 
abstracted  .contemplation;  though  their  effects  and  profits  may  be 
frequently  objects  of  our  bodily  senses.  And  indeed,  if  we  would 
fix  a  clear  notion  of  an  incorporeal  hereditament,  we  must  be  careful 
not  to  confound  together  the  profits  produced,  and  the  thing,  or 
hereditament,  which  produces  them.  An  annuity,  for  instance,  is 
an  incorporeal  hereditament:  for  though  the  money,  which  is  the 
fruit  or  product  of  this  annuity,  is  doubtless  of  a  corporeal  nature, 
yet  the  annuity  itself,  which  produces  that  money,  is  a  thing  in- 
visible, has  only  a  mental  existence,  and  cannot  be  delivered  over 
from  hand  to  hand.  So  tithes,  if  we  consider  the  produce  of  them, 
as  the  tenth  sheaf  or  tenth  lamb,  seem  to  be  completely  corporeal; 
yet  they  are  indeed  incorporeal  hereditaments:  for  they,  being 
merely  a  contingent  springing  right,  collateral  to  or  issuing  out  of 
lands,  can  never  be  the  object  of  sense:  that  casual  share  of  the 
annual  increase  is  not,  till  severed,  capable  of  being  shown  to  the 
eye,  nor  of  being  delivered  into  bodily  possession. 

Incorporeal  hereditaments  are  principally  of  ten  sorts;  advow- 
sons,  tithes,  commons,  ways,  offices,  dignities,  franchises,  corodies 
or  pensions,  annuities,  and  rents. 

Under  the  name  of  things  personal  are  included  all  sorts  of 
things  movable,  which  may  attend  a  man's  person  wherever  he 
goes:  and  therefore  being  only  the  objects  of  the  law  while  they 
remain  within  the  limits  of  its  jurisdiction,  and  being  also  of  a 


574  PROPERTY 

perishable  quality,  are  not  esteemed  of  so  high  a  nature,  nor  paid 
so  much  regard  to  by  the  law,  as  things  that  are  in  their  nature  more 
permanent  arid  immovable,  as  land  and  houses,  and  the  profits  issu- 
ing thereout.  These,  being  constantly  within  the  reach  and  under 
the  protection  of  the  law,  were  the  principal  favorites  of  our  first 
legislators:  who  took  all  imaginable  care  in  ascertaining  the  rights, 
and  directing  the  disposition,  of  such  property  as  they  imagined 
to  be  lasting,  and  which  would  answer  to  posterity  the  trouble  and 
pains  that  their  ancestors  employed  about  them;  but  at  the  same 
time  entertained  a  very  low  and  contemptuous  opinion  of  all  per- 
sonal estate,  which  they  regarded  as  only  a  transient  commodity. 
The  amount  of  it  indeed  was  comparatively  very  trifling,  during 
the  scarcity  of  money  and  the  ignorance  of  luxurious  refinement 
which  prevailed  in  the  feodal  ages.^  Hence  it  was,  that  a  tax  of 
the  fifteenth,  tenth,  or  sometimes  a  much  larger  proportion,  of  all 
the  movables  of  the  subject,  was  frequently  laid  without  scruple, 
and  is  mentioned  with  much  unconcern  by  our  ancient  historians, 
though  now  it  would  justly  alarm  our  opulent  merchants  and  stock- 
holders. And  hence  likewise  may  be  derived  the  frequent  for- 
feitures inflicted  by  the  common  law,  of  all  a  man's  goods  and 
chattels,  for  misbehaviors  and  inadvertencies  that  at  present  hardly 
seem  to  deserve  so  severe  a  punishment.  Our  ancient  law  books, 
which  are  founded  upon  the  feodal  provisions,  do  not  therefore 
often  condescend  to  regulate  this  species  of  property.  There  is 
not  a  chapter  in  Britton  or  the  Mirror,  that  can  fairly  be  referred 
to  this  head;  and  the  little  that  is  to  be  found  in  Glanvill,  Bracton, 
and  Fleta  seems  principally  borrowed  from  the  civilians.  But  of 
later  years,  since  the  introduction  and  extension  of  trade  and  com- 
merce, which  are  entirely  occupied  in  this  species  of  property,  and 
have  greatly  augmented  its  quantity,  and  of  course  its  value,  we 
have  learned  to  conceive  different  ideas  of  it.  Our  courts  now 
regard  a  man's  personalty  in  a  light  nearly,  if  not  quite,  equal  to 
his  realty:    and  have  adopted  a  more  enlarged  and  less  technical 

1  "A  Cistercian  abbot  of  the  thirteenth  century,  who  counted  his  sheep  by  the 
thousand,  would  have  been  surprised  to  hear  that  he  had  few  chattels  of  any 
value."  "Time  was  when  oxen  served  as  money  and  rules  native  in  that  time 
will  easily  live  on  into  later  ages.  The  pecunia  of  Domesday  Book  is  not  money 
but  cattle.  When  cattle  serve  as  money,  one  ox  must  be  regarded  for  the  pur- 
poses of  the  law  exactly  as  good  as  another  ox.  ...  It  was  by  slow  degrees  that 
beasts  lost  their  'pecuniary  character'."  Pollock  and  Maitland,  History  of  Eng- 
lish Law,  II,  147,  150. 


KINDS  OF  PROPERTY  575 

mode  of  considering  the  one  than  the  other;  frequently  drawn  from 
the  rules  which  they  found  already  established  by  the  Roman  law, 
wherever  those  rules  appeared  to  be  well  grounded  and  apposite  to 
the  case  in  question,  but  principally  from  reason  and  con\enience, 
adapted  to  the  circumstances  of  the  times;  preser\ing  withal  a  due 
regard  to  ancient  usages,  and  a  certain  feodal  tincture,  which  is 
still  to  be  found  in  some  branches  of  personal  property. 

But  things  personal,  by  our  law,  do  not  only  include  things 
movable,  but  also  something  more:  the  whole  of  which  is  compre- 
hended under  the  general  name  of  chattels,  which  Sir  Edward  Coke 
says  is  a  French  word  signifying  goods.  The  appellation  is  in  truth 
derived  from  the  technical  Latin  word  catalla;  which  primarily 
signified  only  beasts  of  husbandry,  or  (as  we  still  call  them)  cattle, 
•but  in  its  secondary  sense  was  applied  to  all  movables  in  general. 
In  the  grand  coustumier  of  Normandy  a  chattel  is  described  as  a 
mere  movable,  but  at  the  same  time  it  is  set  in  opposition  to  a  fief 
or  feud:  so  that  not  only  goods,  but  whatever  was  not  a  feud,  were 
accounted  chattels.  And  it  is  in  this  latter,  more  extended,  negative 
sense,  that  our  law  adopts  it:  the  idea  of  goods,  or  movables  only, 
being  not  sufficiently  comprehensive  to  take  in  everything  that  the 
law  considers  as  a  chattel  interest.  For  since,  as  the  commentator 
on  the  coustumier  observes,  there  are  two  requisites  to  make  a  fief 
or  heritage,  duration  as  to  time,  and  immobility  with  regard  to 
place;  whatever  wants  either  of  these  qualities  is  not,  according  to 
the  Normans,  an  heritage  or  fief;  or,  according  to  us,  is  not  a  real 
estate:  the  consequence  of  which  in  both  laws  is,  that  it  must  be  a 
personal  estate,  or  chattel. 

Chattels  therefore  are  distributed  by  the  law  into  two  kinds; 
chattels  real,  and  chattels  personal. 

1.  Chattels  real,  saith  Sir  Edward  Coke,  are  such  as  concern, 
or  savor  of,  the  realty;  as  terms  for  years  of  land,  wardships  in 
chivalry,  (while  the  military  tenures  subsisted,)  the  next  presenta- 
tion to  a  church,  estates  by  a  statute-merchant,  statute-staple, 
e/^gV/,  or  the  like ;  of  all  which  we  have  already  spoken.  And  these 
are  called  real  chattels,  as  being  interests  issuing  out  of,  or  annexed 
to,  real  estates:  of  which  they  have  one  quality,  viz.,  immobility, 
which  denominates  them  real;  but  want  the  other,  viz.,  a  sufficient, 
legal,  indeterminate  duration;  and  this  want  it  is  that  constitutes 
them  chattels.  The  utmost  period  for  which  they  can  last  is  fixed 
and  determinate,  either  for  such  a  space  of  time  certain,  or  till  such 
a  particular  sum  of  money  be  raised  out  of  such  a  particular  income; 
so  that  they  are  not  equal  in  the  eye  of  the  law  to  the  lowest  estate 


576  PROPERTY 

of  freehold,  a  lease  for  another's  life:  their  tenants  were  considered 
upon  feodal  principles  a.s  merely  bailiffs  or  farmers;  and  the  tenant 
of  the  freehold  might  at  any  time  have  destroyed  their  interest, 
till  the  reign  of  Henry  VIII.  A  freehold,  which  alone  is  a  real  estate, 
and  seems  (as  has  been  said)  to  answer  to  the  fief  in  Normandy,  is 
conveyed  by  corporal  investiture  and  livery  of  seisin;  which  gives 
the  tenant  so  strong  a  hold  of  the  land,  that  it  never  after  can  be 
wrested  from  him  during  his  life,  but  by  his  own  act  of  voluntary 
transfer,  or  of  forfeiture;  or  else  by  the  happening  of  some  future 
contingency,  as  in  estates  pur  aider  vie,  and  the  determinable  free- 
hold mentioned  in  a  former  chapter.  And  even  these,  being  of  an 
uncertain  duration,  may  by  possibility  last  for  the  owner's  life;  for 
the  law  will  not  presuppose  the  contingency  to  happen  before  it 
actually  does,  and  till  then  the  estate  is  to  all  intents  and  purposes 
a  life-estate,  and  therefore  a  freehold  interest.  On  the  other  hand, 
a  chattel  interest  in  lands,  which  the  Normans  put  in  opposition  to 
fief,  and  we  to  freehold,  is  conveyed  by  no  seisin  or  corporal  investi- 
ture, but  the  possession  is  gained  by  the  mere  entry  of  the  tenant 
himself;  and  it  will  certainly  expire  at  a  time  prefixed  and  deter- 
mined, if  not  sooner.  Thus  a  lease  for  years  must  necessarily  fail 
at  the  end  and  completion  of  the  term ;  the  next  presentation  to  a 
church  is  satisfied  and  gone  the  instant  it  comes  into  possession, 
that  is,  by  the  first  avoidance  and  presentation  to  the  living;  the 
conditional  estates  by  statutes  and  elegit  are  determined  as  soon  as 
the  debt  is  paid ;  and  so  guardianship  in  chivalry  expired  of  course 
the  moment  that  the  heir  came  of  age.  And  if  there  be  any  other 
chattel  real,  it  will  be  found  to  correspond  with  the  rest  in  this 
essential  quality:  that  its  duration  is  limited  to  a  time  certain, 
beyond  which  it  cannot  subsist. 

2.  Chattels  personal  are,  properly  and  strictly  speaking,  things 
movable;  which  may  be  annexed  to  or  attendant  on  the  person  of 
the  owner,  and  carried  about  with  him  from  one  part  of  the  world 
to  another.  Such  are  animals,  household  stuff,  money,  jewels, 
corn,  garments,  and  every  thing  else  that  can  properly  be  put  in 
motion  and  transferred  from  place  to  place. ^ 

4.     TENURE 

Blackstone,  Commentaries,  II,  59-60. 

Almost  all  the  real  property  of  this  kingdom  is,  by  the  policy  of 
our  laws,  supposed  to  be  granted  by,  dependent  upon,  and  holden 

'See  Pollock  and  Maitland,  History  of  English  Law,  II,  Chap.  4,  §7. 


TENURE  577 

of,  some  superior  lord,  by  and  in  consideration  of  certain  services 
to  be  rendered  to  the  lord  by  the  tenant  or  possessor  of  this  property. 
The  thing  holden  is  therefore  styled  a  tenement,  the  possessors 
thereof  tenants,  and  the  manner  of  their  possession  a  tenure.  Thus 
all  the  land  in  the  kingdom  is  supposed  to  be  holden,  mediately  or 
immediately,  of  the  king,  who  is  styled  the  lord  paramount,  or 
above  all.  Such  tenants  as  held  under  the  king  immediately,  when 
they  granted  out  portions  of  their  lands  to  inferior  persons,  became 
also  lords  with  respect  to  those  inferior  persons,  as  they  were  still 
tenants  with  respect  to  the  king,  and,  thus,  partaking  of  a  middle 
nature,  were  called  mesne,  or  middle,  lords.  So  that  if  the  king 
granted  a  manor  to  A.,  and  he  granted  a  portion  of  the  land  to  B., 
now  B.  was  said  to  hold  of  A.,  and  A.  of  the  king;  or,  in  other  words, 
B.  held  his  lands  immediately  of  A.,  but  mediately  of  the  king. 
The  king  therefore  was  styled  lord  paramount;  A.  was  both  tenant 
and  lord,  or  was  a  mesne  lord;  and  B.  was  called  tenant  paravail, 
or  the  lowest  tenant;  being  he  who  was  supposed  to  make  avail, 
or  profit  of  the  land.  In  this  manner  are  all  the  lands  of  the  king- 
dom holden,  which  are  in  the  hands  of  subjects:  for,  according  to 
Sir  Edward  Coke,  in  the  law  of  England  we  have  not  properly 
allodium;  which,  we  have  seen,  is  the  name  by  which  the  feudists 
abroad  distinguish  such  estates  of  the  subject  as  are  not  holden 
of  any  superior.  So  that  at  the  first  glance  we  may  observe,  that 
our  lands  are  either  plainly  feuds,  or  partake  very  strongly  of  the 
feodal  nature. 

All  tenures  being  thus  derived,  or  supposed  to  be  derived,  from 
the  king,  those  that  held  immediately  under  him,  in  right  of  his 
crown  and  dignity,  were  called  his  tenants  in  capite,  or  in  chief; 
which  was  the  most  honorable  species  of  tenure,  but  at  the  same 
time  subjected  the  tenants  to  greater  and  more  burthensome  services 
than  inferior  tenures  did. 

Statute  Quia  Emptores,  18  Edward  I,  1290. 

C.  i.  Forasmuch  as  purchasers  of  lands  and  tenements  of  the 
fees  of  great  men  and  other  lords  have  many  times  heretofore 
entered  into  their  fees,  to  the  prejudice  of  the  lords,  to  whom  the 
freeholders  of  such  great  men  have  sold  their  lands  and  tenements 
to  be  holden  in  fee  of  their  feoffors  and  not  of  the  chief  lords  of  the 
fees,  whereby  the  same  chief  lords  have  many  times  lost  their 
escheats,  marriages,  and  wardships  of  lands  and  tenements  belong- 
ing to  their  fees,  which  thing  seems  very  hard  and  extreme  unto 


578  PROPERTY 

those  lords  and  other  great  men,  and  moreover  in  this  case  manifest 
disheritance:  our  lord  the  king  in  his  parliament  at  Westminster 
after  Easter,  the  eighteenth  year  of  his  reign,  that  is  to  wit  in  the 
quinzine  of  Saint  John  Baptist,  at  the  instance  of  the  great  men 
of  the  realm,  granted,  provided,  and  ordained,  that  from  henceforth 
it  should  be  lawful  to  every  freeman  to  sell  at  his  own  pleasure  his 
lands  and  tenements  or  part  of  them,  so  that  the  feoffee  shall  hold 
the  same  lands  or  tenements  of  the  chief  lord  of  the  same  fee,  by 
such  service  and  customs  as  his  feoffor  held  before. 

C.  ii.  And  if  he  sell  any  part  of  such  lands  or  tenements  to  any, 
the  feoffee  shall  immediately  hold  it  of  the  chief  lord,  and  shall 
be  forthwith  charged  with  the  services  for  so  much  as  pertaineth 
or  ought  to  pertain,  to  the  said  chief  lord,  for  the  same  parcel,  accord- 
ing to  the  quantity  of  the  land  or  tenement  so  sold;  and  so  in  this 
case  the  same  part  of  the  service  shall  remain  to  the  lord,  to  be  taken 
by  the  hands  of  the  feoffee,  for  the  which  he  ought  to  be  attendant 
and  answerable  to  the  same  chief  lord  according  to  the  quantity 
of  the  land  or  tenement  sold  for  the  parcel  of  the  service  so  due. 

C.  iii.  And  it  is  to  be  understood  that  by  the  said  sales  or 
purchases  of  lands  or  tenements,  or  any  parcel  of  them,  such  lands 
or  tenements  shall  in  no  wise  come  into  mortmain,  either  in  part 
or  in  whole,  neither  by  policy  ne  craft,  contrary  to  the  form  of  the 
statute  made  thereupon  of  late.  And  it  is  to  wit  that  this  statute 
extendeth  but  only  to  lands  holden  in  fee  simple,  and  that  it  extend- 
eth  to  the  time  coming.  And  it  shall  begin  to  take  effect  at  the 
Feast  of  Saint  Andrew  the  Apostle  next  coming. 

Butler,  Note  to  Coke  on  Littleton,  2666. 

Seisin  is  a  technical  term  denoting  the  completion  of  that  inves- 
titure by  which  the  tenant  was  admitted  into  the  tenure,  and  with- 
out which  no  freehold  could  be  constituted  or  pass.  It  is  a  word 
common  as  well  to  the  French  as  to  the  English  law.  It  is  either 
in  deed,  which  is,  when  the  person  has  the  actual  seisin  or  possession; 
or  in  law,  when  after  a  descent  the  person  on  whom  the  lands 
descend  has  not  actually  entered  and  the  possession  continues 
vacant,  not  being  usurped  by  another.  Wlien  lands  of  inheritance 
are  carved  into  different  estates,  the  tenant  of  the  freehold  in 
possession,  and  the  persons  in  remainder  or  reversion ,  eire  equally  i?^ 
the  seisin  of  the  fee.  But  in  op[)osition  to  what  may  be  termed  the 
expectant  nature  of  the  seisin  of  those  in  remtiinder  or  reversion, 
the  tenant  in  possession  is  said  to  have  the  victual  seisin   of  the 


TENURE  579 

lands.  The  fee  is  entrusted  to  him.  By  any  act  which  amounts 
to  a  disaffirmance  by  him  of  the  title  of  those  in  the  reversion,  he 
forfeits  his  estate,  and  any  act  of  a  stranger  which  disturljs  his 
estate  is  a  disturbance  of  the  whole  fee.  Disseisin  seems  to  imply 
the  turning  the  tenant  out  of  his  fee,  and  usurping  his  place  and 
relation. 

Blackstone,  Commentaries,  II,  62-63,  78-79. 

The  first,  most  universal,  and  esteemed  the  most  honorable  species 
of  tenure,  was  that  by  knight-service,  called  in  Latin  servitium 
wilitare;  and  in  law-French,  chivalry,  or  service  de  chivaler,  answering 
to  the  fief  dliaithert  of  the  Normans,  which  name  is  expressly  given 
it  by  the  Mirrour.  This  differed  in  very  few  points,  as  we  shall 
presently  see,  from  a  pure  and  proper  feud,  being  entirely  military, 
and  the  general  effect  of  the  feodal  establishment  in  England.  To 
make  a  tenure  by  knight-service,  a  determinate  quantity  of  land 
was  necessary,  which  was  called  a  knight's  fee,  feodum  militare; 
the  measure  of  which  in  3  Edw.  I.  was  estimated  at  twelve  plough 
lands,  and  its  value  (though  it  varied  with  the  times)  in  the  reigns 
of  Edward  I.  and  Edward  II.  was  stated  at  £20  per  annum.  And 
he  who  held  this  proportion  of  land  (or  a  whole  fee)  by  knight- 
service,  was  bound  to  attend  his  lord  to  the  wars  for  forty  days  in 
every  year,  if  called  upon;  which  attendance  was  his  reditus  or 
return,  his  rent  or  service  for  the  land  he  claimed  to  hold.  If  he 
held  only  half  a  knight's  fee,  he  was  only  bound  to  attend  twenty 
days,  and  so  in  proportion.  And  there  is  reason  to  apprehend,  that 
this  service  was  the  whole  that  our  ancestors  meant  to  subject 
themselves  to;  the  other  fruits  and  consequences  of  this  tenure 
being  fraudulently  superinduced,  as  the  regular  (though  unforeseen) 
appendages  of  the  feodal  system. 

This  tenure  of  knight-service  had  all  the  marks  of  a  strict  and 
regular  feud:  it  was  granted  by  words  of  pure  donation,  dedi  et 
concessi;  was  transferred  by  investiture  or  delivering  corporal 
possession  of  the  land,  usually  called  livery  of  seisin;  and  was 
perfected  by  homage  and  fealty.  It  also  drew  after  it  these  seven 
fruits  and  consequences,  as  inseparably  incident  to  the  tenure  in 
chivalry;  viz.,  aids,  relief,  primer  seisin,  wardship,  marriage,  fines 
for  alienation  and  escheat.  .  .  . 

The  military  tenure,  or  that  by  knight-service,  consisted  of  what 
were  reputed  the  most  free  and  honorable  services,  but  which  in 


580  PROPERTY 

their  nature  were  unavoidably  uncertain  in  respect  to  the  time  of 
their  performance.  The  second  species  of  tenure,  or  free  socage, 
consisted  also  of  free  and  honorable  services  but  such  as  were 
liquidated  and  reduced  to  an  absolute  certainty.  And  this  tenure 
not  only  subsists  to  this  day,  but  has  in  a  manner  absorbed  and 
swallowed  up  (since  the  statute  of  Charles  the  Second)  almost  every 
other  species  of  tenure.     And  to  this  we  are  next  to  proceed. 

Socage,  in  its  most  general  and  extensive  signification,  seems  to 
denote  a  tenure  by  any  certain  and  determinate  service.  And  in 
this  sense  it  is  by  our  ancient  writers  constantly  put  in  opposition 
to  chivalry,  or  knight-service,  where  the  render  was  precarious  and 
uncertain.  Thus  Bracton:  if  a  man  holds  by  rent  in  money,  with- 
out any  escuage  or  serjeantry,  "id  tenementum  diet  potest  socagium" : 
but  if  you  add  thereto  any  royal  service,  or  escuage,  to  any  the 
smallest  amount,  "illud  diet  poterit  feodum  militare.'"  So  too  the 
author  of  Fleta:  "ex  donationibus,  servitia  militaria  vel  magnae 
serjantiae  non  continentibiis ,  oritur  7iobis  quoddam  nomen  generate, 
quod  est  socagium.''  Littleton  also  defines  it  to  be,  where  the  tenant 
holds  his  tenement  of  the  lord  by  any  certain  service,  in  lieu  of  all 
other  services;  so  that  they  be  not  services  of  chivalry,  or  knight- 
service.  And  therefore  afterwards  he  tells  us,  that  whatsoe\'er  is 
not  tenure  in  chivalry  is  tenure  in  socage:  in  like  manner  as  it  is  de- 
fined by  Finch,  a  tenure  to  be  done  out  of  war.  The  service  must 
therefore  be  certain,  in  order  to  denominate  it  socage:  as  to  hold 
by  fealty  and  20s.  rent;  or,  by  homage,  fealty,  and  20s.  rent;  or, 
by  homage  and  fealty  without  rent;  or  by  fealty  and  certain  cor- 
poral service,  as  ploughing  the  lord's  land  for  three  days;  or,  by 
fealty  only  without  any  other  service:  for  all  these  are  tenures  in 
socage. 

Statute  12  Car.  II,  c.  24,  1660. 

Whereas  it  hath  been  found  by  former  experience  that  the  Court 
of  Wards  and  Liveries  and  tenures  by  knight-service  either  of  the 
king  or  others,  or  by  knight-service  in  capite,  or  socage  in  capite  of  the 
king,  and  the  consequents  upon  the  same,  have  been  much  more 
burthensome,  grievous  and  prejudicial  to  the  kingdom  than  they 
have  been  beneficial  to  the  king.  And  whereas  since  the  intermis- 
sion of  the  said  court,  which  hath  been  from  the  four  and  twentieth 
day  of  February,  which  was  in  the  year  of  our  Lord  one  thousand 
six  hundred  forty  and  five,  many  persons  have  by  will  and  other- 
wise made  disposal  of  their  lands  held  by  knight-service,  whereupon 


TENURE  581 

divers  questions  might  possibly  arise  unless  some  seasonable  remedy 
be  taken  to  prevent  the  same;  Be  it  therefore  enacted  by  the  King 
our  Sovereign  Lord  with  the  assent  of  the  Lords  and  Commons  in 
Parliament  assembled,  and  by  the  authority  of  the  same,  and  it  is 
hereby  enacted.  That  the  Court  of  Wards  and  Liveries,  and  all 
wardships,  liveries,  primer  seisins  and  ousterlemains,  values  and 
forfeitures  of  marriages,  by  reason  of  any  tenure  of  the  king's 
majesty,  or  of  any  other  by  knight-service,  and  all  mean  rates,  and 
all  other  gifts,  grants,  and  charges,  incident  or  arising  for  or  by 
reason  of  wardships,  liveries,  primer  seisins,  or  ousterlemains  be 
taken  away  and  discharged,  and  are  hereby  enacted  to  be  taken 
away  and  discharged,  from  the  said  twenty-fourth  day  of  February, 
one  thousand  six  hundred  forty  and  five;  any  law,  statute,  custom, 
or  usage  to  the  contrary  hereof  in  any  wise  notwithstanding. 
And  that  all  fines  for  alienations,  seizures,  and  pardons  for  aliena- 
tions, tenure  by  homage,  and  all  charges  incident  or  arising  for  or 
by  reason  of  wardship,  livery,  primer  seisin,  or  ousterlemain,  or 
tenure  by  knight-service,  escuage,  and  also  aide  pur  file  marrier, 
et  pur  faire  fitz  chivalier,  and  all  other  charges  incident  thereunto 
be  likewise  taken  away  and  discharged  from  the  said  twenty-fourth 
day  of  February,  one  thousand  six  hundred  forty  and  five;  any  law, 
statute,  custom  or  usage  to  the  contrary  hereof  in  any  wise  not- 
withstanding. And  that  all  tenures  by  knight-service  of  the  king, 
or  of  any  other  person,  and  by  knight-service  in  capite,  and  by 
socage  in  capite  of  the  king,  and  the  fruits  and  consequents  thereof, 
happened  or  which  shall  or  may  hereafter  happen  or  arise  thereupon 
or  thereby,  be  taken  away  and  discharged;  any  law,  statute,  cus- 
tom, or  usage  to  the  contrary  hereof  in  any  wise  notwithstanding: 
and  all  tenures  of  any  honors,  manors,  lands,  tenements,  or  here- 
ditaments, of  any  estate  of  inheritance  at  the  common  law,  held 
either  of  the  king  or  of  any  other  person  or  persons,  bodies  politic 
or  corporate,  are  hereby  enacted  to  be  turned  into  free  and  common 
socage,  to  all  intents  and  purposes,  from  the  said  twenty-fourth 
day  of  February,  one  thousand  six  hundred  forty  and  five,  and  shall 
be  so  construed,  adjudged  and  deemed  to  be  from  the  said  twenty- 
fourth  day  of  February,  one  thousand  six  hundred  forty  and  five, 
and  forever  hereafter,  turned  into  free  and  common  socage;  any 
law,  statute,  custom,  or  usage  to  the  contrary  hereof  in  any  wise 
notwithstanding. 

2.     And  that  the  same  shall  forever  hereafter  stand  and  be  dis- 
charged of  all  tenure  by  homage,  escuage,  voyages  royal,  and  charges 


582  PROPERTY 

for  the  same,  wardships  incident  to  tenure  by  knight's  service,  and 
values  and  forfeitures  of  marriage,  and  all  other  charges  incident 
to  tenure  by  knight-ser\-ice,  and  of  and  from  aide  pur  file  marrier, 
and  aide  pur  f aire  fitz  chivalier;  any  law,  statute,  usage  or  custom 
to  the  contrary  in  any  wise  notwithstanding.  And  that  all  con- 
veyances and  devises  of  any  manors,  lands,  tenements,  and  here- 
ditaments, made  since  the  said  twenty-fourth  day  of  February,  shall 
be  expounded  to  be  of  such  effect  as  if  the  same  manors,  lands, 
tenements,  and  hereditaments  had  been  then  held  and  continued 
to  be  holden  in  free  and  common  socage  only;  any  law,  statute, 
custom,  or  usage  to  the  contrary  hereof  in  any  wise  notwith- 
standing. 

4.  And  be  it  further  enacted  by  the  authority  aforesaid,  That 
all  tenures  hereafter  to  be  created  by  the  king's  majesty,  his  heirs 
or  successors,  upon  any  gifts  or  grants  of  any  manors,  lands,  tene- 
ments, or  hereditaments,  of  any  estate  of  inheritance  at  the  common 
law,  shall  be  in  free  and  common  socage,  and  shall  be  adjudged  to 
be  in  free  and  common  socage  only,  and  not  by  knight-service,  or 
in  capite,  and  shall  be  discharged  of  all  wardship,  value  and  for- 
feiture of  marriage,  livery,  primer  seisin,  ousterlemain,  aide  pur 
f aire  fitz  chivalier  and  pur  file  marrier;  any  law,  statute  or  reserva- 
tion to  the  contrary  thereof  in  any  wise  notwithstanding. 

5.     ESTATES 

Blackstone,  Commentaries,  II,  103-107. 

The  next  objects  of  our  disquisitions  are  the  nature  and  properties 
of  estates.  An  estate  in  lands,  tenements,  and  hereditaments,  sig- 
nifies such  interest  as  the  tenant  has  therein:  so  that  if  a  man 
grants  all  his  estate  in  Dale  to  A.  and  his  heirs,  every  thing  that 
he  can  possibly  grant  shall  pass  thereby.  It  is  called  in  Latin 
status;  it  signifying  the  condition  or  circumstance  in  which  the 
owner  stands  with  regard  to  his  property.  And  to  ascertain  this 
with  proper  precision  and  accuracy,  estates  may  be  considered  in 
a  threefold  view: — first,  with  regard  to  the  quantity  of  interest 
which  the  tenant  has  in  the  tenement:  secondly,  with  regard  to  the 
timeat  which  that  quantity  of  interest  is  to  be  enjoyed :  and,  thirdly, 
with  regard  to  the  number  and  co7inections  of  the  tenants. 

First,  with  regard  to  the  quantity  of  interest  which  the  tenant  has 
in  the  tenement,  this  is  measured  by  its  duration  and  extent.     Thus, 


ESTATES  583 

either  his  right  of  possession  is  to  subsist  for  an  uncertain  period, 
during  his  own  life,  or  the  life  of  another  man;  to  determine  at  his 
own  decease,  or  to  remain  to  his  descendants  after  him:  or  it  is 
circumscribed  within  a  certain  number  of  years,  months,  or  days: 
or,  lastly,  it  is  infinite  and  unlimited,  being  vested  in  him  and  his 
representatives  forever.  And  this  occasions  the  primary  di\-ision 
of  estates  into  such  as  are  freehold  and  such  as  are  less  than  freehold. 

An  estate  of  freehold  liherum  tenementum,  or  franktenement,  is 
defined  by  Britton  to  be  "the  possession  of  the  soil  of  a  freeman." 
And  St.  Germyn  tells  us  that  "the  possession  of  the  land  is  called 
in  the  law  of  England  the  franktenement  or  freehold."  Such 
estate,  therefore,  and  no  other,  as  requires  actual  possession  of  the 
land,  is,  legally  spe^k.\n^,  freehold:  which  actual  possession  can,  by 
the  course  of  the  common  law,  be  only  given  by  the  ceremony 
called  li\ery  of  seisin,  which  is  the  same  as  the  feodal  investiture. 
And  from  these  principles  we  may  extract  this  description  of  a 
freehold;  that  it  is  such  an  estate  in  lands  as  is  conveyed  by  livery 
of  seisin,  or,  in  tenements  of  any  incorporeal  nature,  by  what  is 
equivalent  thereto.  And  accordingly  it  is  laid  down  by  Littleton, 
that  where  a  freehold  shall  pass,  it  behooveth  to  have  livery  of 
seisin.  As,  therefore,  estates  of  inheritance  and  estates  for  life 
could  not  by  common  law  be  conveyed  without  li\'ery  of  seisin, 
these  are  properly  estates  of  freehold;  and,  as  no  other  estates  are 
con\eyed  with  the  same  solemnity,  therefore  no  others  are  properly 
freehold  estates. 

Estates  of  freehold  (thus  understood)  are  either  estates  of  inheri- 
tance, or  estates  not  of  inheritance.  The  former  are  again  divided 
into  inheritances  absolute  or  fee-simple;  and  inheritances  limited, 
one  species  of  which  we  usually  call  fee-tail. 

1.  Tenant  in  fee-simple  (or,  as  he  is  frequently  styled,  tenant  in 
fee)  is  he  that  hath  lands,  tenements,  or  hereditaments,  to  hold  to 
him  and  his  heirs  forever:  generally,  absolutely,  and  simply;  with- 
out m^entioning  what  heirs,  but  referring  that  to  his  own  pleasure, 
or  to  the  disposition  of  the  law.  The  true  meaning  of  the  word  fee 
{feodum)  is  the  same  with  that  of  feud  or  fief,  and  in  its  original 
sense  it  is  taken  in  contradistinction  to  allodium;  which  latter  the 
writers  on  this  subject  define  to  be  every  man's  own  land,  which 
he  possesseth  merely  in  his  own  right,  without  owing  any  rent  or 
service  to  any  superior.  This  is  property  in  its  highest  degree; 
and  the  owner  thereof  hath  absolutum  et  directum  dominium ,  and 
therefore  is  said  to*  be  seised  thereof  absolutely  in  dominico  sua, 


584  PROPERTY 

in  his  own  demesne.  But  feodum,  or  fee,  is  that  which  is  held  of 
some  superior,  on  condition  of  rendering  him  ser\'ice;  in  which 
superior  the  ultimate  property  of  the  land  resides.  .  .  . 

This  is  the  primar}^  sense  and  acceptance  of  the  word  fee.  But 
(as  Sir  Martin  Wright  very  justly  observes)  the  doctrine,  "that 
all  lands  are  holden,"  having  been  for  so  many  ages  a  fixed  and 
undeniable  axiom,  our  English  lawyers  do  very  rarely  (of  late  years 
especially)  use  the  word  fee  in  this  its  primary  original  sense,  in 
contradistinction  to  aUodiiim  or  absolute  property,  with  which  they 
have  no  concern ;  but  generally  use  it  to  express  the  continuance 
or  quantity  of  estate.  A  fee  therefore,  in  general,  signifies  an  estate 
of  inheritance;  being  the  highest  and  most  extensive  interest  that 
a  man  can  have  in  a  feud :  and  when  the  term  is  used  simply,  without 
any  other  adjunct,  or  has  the  adjunct  of  simple  annexed  to  it,  (as 
a  fee,  or  a  fee-simple,)  it  is  used  in  contradistinction  to  a  fee-condi- 
tional at  the  common  law,  or  a  fee-tail  by  the  statute;  importing 
an  absolute  inheritance,  clear  of  any  condition,  limitation,  or 
restrictions  to  particular  heirs,  but  descendible  to  the  heirs  general, 
whether  male  or  female,  lineal  or  collateral.  And  in  no  other  sense 
than  this  is  the  king  said  to  be  seised  in  fee,  he  being  the  feudatory 
of  no  man. 

Taking  therefore  fee  for  the  future,  unless  where  otherwise 
explained,  in  this  its  secondary  sense,  as  a  state  of  inheritance,  it  is 
applicable  to,  and  may  be  had  in,  any  kind  of  hereditaments  either 
corporeal  or  incorporeal.  But  there  is  this  distinction  between 
the  two  species  of  hereditaments:  that,  of  a  corporeal  inheritance 
a  man  shall  be  said  to  be  seised  in  his  demesne,  as  of  fee;  of  an 
incorporeal  one,  he  shall  only  be  said  to  be  seised  as  of  fee,  and  not 
in  his  demesne.  For,  as  incorporeal  hereditaments  are  in  their 
nature  collateral  to,  and  issue  out  of,  lands  and  houses,  their  owner 
hath  no  property,  dominicum,  or  demesne,  in  the  thing  itself,  but 
hath  only  something  derived  out  of  it;  resembling  the  servitutes, 
or  services,  of  the  civil  law.  The  dominicum  or  property  is  frequently 
in  one  man  while  the  appendage  or  service  is  in  another.  Thus 
Caius  may  be  seised  as  of  fee  of  a  way  leading  over  the  land,  of 
which  Titius  is  seised  in  his  demesne  as  of  fee. 

The  fee-simple  or  inheritance  of  lands  and  tenements  is  generally 
vested  and  resides  in  some  person  or  other;  though  divers  inferior 
estates  m.ay  be  carved  out  of  it.  As  if  one  grants  a  lease  for  twenty- 
one  years,  or  for  one  or  two  lives,  the  fee-simple  remains  vested  in 
him  and  his  heirs;    and  after  the  determinaticm  of  those  years  or 


ESTATES  585 

lives,  the  land  reverts  to  the  grantor  or  his  heirs,  who  shall  hold  it 
again  in  fee-simple.  Yet  sometimes  the  fee  may  be  in  abeyance, 
that  is,  (as  the  word  signifies,)  in  expectation,  remembrance,  and 
contemplation  in  law;  there  being  no  person  in  esse  in  whom  it 
can  vest  and  abide :  though  the  law  considers  it  as  always  potentially 
existing  and  ready  to  vest  whenever  a  proper  owner  appears.  Thus 
in  a  grant  to  John  for  life,  and  afterwards  to  the  heirs  of  Richard, 
the  inheritance  is  plainly  neither  granted  to  John  nor  Richard,  nor 
can  it  vest  in  the  heirs  of  Richard  till  his  death,  nam  nemo  est  haeres 
viventis:  it  remains  therefore  in  waiting  or  abeyance,  during  the 
life  of  Richard.  This  is  likewise  always  the  case  of  a  parson  of  a 
church,  who  hath  only  an  estate  therein  for  the  term  of  his  life;  and 
the  inheritance  remains  in  abeyance.  And  not  only  the  fee,  but 
the  freehold  also,  may  be  in  abeyance,  as,  when  a  parson  dies,  the 
freehold  of  his  glebe  is  in  abeyance  until  a  successor  be  named,  and 
then  it  vests  in  the  successor. 

Statute  of  Westminster  II,  c.  1  (De  Bonis  Co7iditionalihus) 
1285. 
First,  concerning  lands  that  many  times  are  given  upon  condition, 
that  is,  to  wit,  where  any  giveth  his  land  to  any  man  and  his  wife, 
with  such  condition  expressed  that  if  the  same  man  and  his  wife  die 
without  heir  of  their  bodies  between  them  begotten,  the  land  so 
given  shall  revert  to  the  giver  or  his  heir;  in  case  also  where  one 
giveth  lands  in  free  marriage,  which  gift  hath  a  condition  annexed, 
though  it  be  not  expressed  in  the  deed  of  gift,  which  is  this,  that  if 
the  husband  and  wife  die  without  heir  of  their  bodies  begotten,  the 
land  so  given  shall  revert  to  the  giver  or  his  heir;  in  case  also  where 
one  giveth  land  to  another  and  the  heirs  of  his  body  issuing,  it  seemed 
very  hard  and  yet  seemeth  to  the  givers  and  their  heirs,  that  their 
will  being  expressed  in  the  gift  was  not  heretofore  nor  yet  is  obser^^ed. 
In  all  the  cases  aforesaid  after  issue  begotten  and  born  between 
them,  to  whom  the  lands  were  given  under  such  condition,  hereto- 
fore such  feoffees  had  power  to  aliene  the  land  so  given,  and  to  dis- 
inherit their  issue  of  the  land,  contrary  to  the  minds  of  the  givers, 
and  contrary  to  the  form  expressed  in  the  gift;  and  further,  when 
the  issue  of  such  feoffee  is  failing,  the  land  so  given  ought  to  return 
to  the  giver  or  his  heir  by  form  of  gift  expressed  in  the  deed,  though 
the  issue,  if  any  were,  had  died ;  yet  by  the  deed  and  feoffment  of 
them,  to  whom  land  was  so  given  upon  condition,  the  donors  have 
heretofore  been  barred  of  their  reversion  of  the  same  tenements 


586  PROPERTY 

which  was  directly  repugnant  to  the  form  of  the  gift:  wherefore 
our  lord  the  king,  perceiving  how  necessary  and  expedient  it  should 
he  to  provide  remedy  in  the  aforesaid  cases,  hath  ordained,  that  the 
will  of  the  gi\er  according  to  tiie  form  in  the  deed  of  gift  manifestly 
expressed  shall  be  from  henceforth  observed,  so  that  they  to  whom 
the  land  was  gi\'en  under  such  condition  shall  have  no  power  to 
aliene'the  land  so  given  but  that  it  shall  remain  unto  the  issue  of 
them  to  whom  it  was  given  after  their  death,  or  shall  re\'ertunto  the 
giver  or  his  heirs  if  issue  fail,  either  by  reason  that  there  is  no  issue 
at  all,  or  if  any  issue  be,  it  fail  by  death,  the  heir  of  such  issue  failing. 
Neither  shall  the  second  husband  of  any  such  woman  from  hence- 
forth have  anything  in  the  land  so  given  upon  condition  after  the 
death  of  his  wife,  by  the  law  of  England,  nor  the  issue  of  the  second 
husband  and  wife  shall  succeed  in  the  inheritance,  but  immediately 
after  the  death  of  the  husband  and  wife,  to  whom  the  land  was  so 
given,  it  shall  come  to  their  issue  or  return  unto  the  giver  or  his 
heir  as  before  is  said.  .  .  .  And  it  is  to  wit  that  this  statute  shall 
hold  place  touching  alienation  of  land  contrary  to  the  form  of  gift 
hereafter  to  be  made,  and  shall  not  extend  to  gifts  made  before. 
And  if  a  fine  be  levied  hereafter  upon  such  lands  it  shall  be  void  in 
the  law,  neither  shall  the  heirs  or  such  as  the  reversion  belongeth 
unto,  though  they  be  of  full  age,  within  England,  and  out  of  prison, 
need  to  make  their  claim. 

Littleton,  Tenures,  §§  13-16  {temp.  Edw.  IV).  (The  book  was 
written  in  French.     The  translation  is  Lord  Coke's.) 

Tenant  in  fee  taile  is  by  force  of  the  statute  of  \V.  2,  cap.  1,  for 
before  the  said  statute  all  inheritances  were  fee  simple,  for  all  the 
gifts  which  be  specified  in  that  statute  were  fee  simple  conditional 
at  the  common  law,  as  appeareth  by  the  rehearsall  of  the  same 
statute.  And  now  by  this  statute,  tenant  in  taile  is  in  two  manners, 
that  is  to  say,  tenant  in  taile  generall  and  tenant  in  taile  speciall. 

Tenant  in  taile  generall  is,  where  lands  or  tenements  are  given 
to  a  man,  and  to  his  heires  of  his  bodie  begotten.  In  this  case  it 
is  said  generall  taile,  because  whatsoever  woman,  that  such  tenant 
taketh  to  wife  (if  he  hath  many  wives,  and  by  e\cry  of  them  have 
issue),  yet  everie  one  of  these  issues  by  possibilitie  may  inherit 
the  tenements  by  force  of  the  gift;  because  that  everie  such  issue 
is  of  his  bodie  ingendred. 

In  the  same  manner  it  is,  where  lands  or  tenements  are  given 
to  a  woman,  and  to  the  heires  of  her  bodie;    albeit  that  she  hath 


ESTATES  587 

divers  husbands,  yet  tlie  issue,  which  she  may  have  by  every  hus- 
band, may  inherit  as  issue  in  taile  by  force  of  this  gift;  and  therefore 
such  gifts  are  called  generall  tailes. 

Tenant  in  taile  speciall  is  where  lands  or  tenements  are  given 
to  a  man  and  to  his  wife,  and  to  the  heires  of  their  two  bodies 
begotten.  In  this  case  none  shall  inherit  by  force  of  this  gift,  but 
those  that  be  engendred  between  them  two.  And  it  is  called 
especiall  taile,  because  if  the  wife  die,  and  he  taketh  another  wife, 
and  have  issue,  the  issue  of  the  second  wife  shall  not  inherite  by 
force  of  this  gift,  nor  also  the  issue  of  the  second  husband,  if  the 
first  husband  die. 


New  York  Real  Property  Law,  §  32. 

Estates  tail  have  been  abolished ;  and  every  estate  which  would 
be  adjudged  a  fee  tail,  according  to  the  law  of  this  state,  as  it  existed 
before  the  twelfth  day  of  July,  seventeen  hundred  and  eighty-two, 
shall  be  deemed  a  fee  simple;  and  if  no  valid  remainder  be  limited 
thereon,  a  fee  simple  absolute.  Where  a  remainder  in  fee  shall  be 
hmited  on  any  estate  which  would  be  a  fee  tail,  according  to  the 
law  of  this  state,  as  it  existed  previous  to  such  date,  such  remainder 
shall  be  valid,  as  a  contingent  limitation  on  a  fee,  and  shall  vest  in 
possession  on  the  death  of  the  first  taker,  without  issue  living  at 
the  time  of  such  death. 


Kent,  Commentaries,  IV,  14. 

Estates  tail  were  introduced  into  this  country  with  the  other 
parts  of  the  English  jurisprudence,  and  they  subsisted  in  full  force 
before  our  revolution,  subject  equally  to  the  power  of  being  barred 
by  a  fine  or  common  recovery.  But  the  doctrine  of  estates  tail,  and 
the  complex  and  multifarious  learning  connected  with  it,  have 
become  quite  obsolete  in  most  parts  of  the  United  States.  In  Vir- 
ginia, estates  tail  were  abolished  as  early  as  1776;  in  New  Jersey, 
estates  tail  were  not  abolished  until  1820;  and  in  New  York, 
as  early  as  1782,  and  all  estates  tail  were  turned  into  estates  in  fee 
simple  absolute.  So,  in  North  Carolina,  Kentucky,  Tennessee, 
and  Georgia,  estates  tail  have  been  abolished,  by  being  converted 
by  statute  into  estates  in  fee  simple.  In  the  States  of  Vermont, 
South  Carolina,  and  Louisiana,  they  do  not  appear  to  be  known 
to    their    laws,    or    ever    to    have    existed. 


588  PROPERTY 

Blackstone,  Commentaries,  II,  120-121,  126-127,  129,  140, 
143-144,  146,  150. 

We  are  next  to  discourse  of  such  estates  of  freehold  as  are  not  of 
inheritance,  hut  for  life  only.  And  of  these  estates  for  life,  some  are 
conventional,  or  expressly  created  by  the  act  of  the  parties;  others 
merely  legal,  or  created  by  construction  and  operation  of  law.  We 
will  consider  them  both  in  their  order. 

1.  Estates  for  life,  expressly  created  by  deed  or  grant,  (which 
alone  are  properly  conventional,)  are  where  a  lease  is  made  of  lands 
or  tenements  to  a  man,  to  hold  for  the  term  of  his  own  life,  or  for 
that  of  any  other  person,  or  for  more  lives  than  one,  in  any  of  which 
cases  he  is  styled  tenant  for  life ;  only  when  he  holds  the  estate  by 
the  life  of  another,  he  is  usually  called  tenant  ptir  auter  vie.  These 
estates  for  life  are,  like  inheritances,  of  feodal  nature;  and  were, 
for  some  time,  the  highest  estate  that  any  man  could  have  in  a  feud, 
which  (as  we  have  before  seen)  was  not  in  its  original  hereditary. 
They  are  given  or  conferred  by  the  same  feodal  rights  and  solemni- 
ties, the  same  investiture  or  livery  of  seisin,  as  fees  themselves  are; 
and  they  are  held  by  fealty,  if  demanded,  and  such  conventional 
rents  and  services  as  the  lord  or  lessor,  and  his  tenant  or  lessee, 
have  agreed  on. 

Estates  for  life  may  be  created,  not  only  by  the  express  words 
before  mentioned,  but  also  by  a  general  grant,  without  defining  or 
limiting  any  specific  estate.  As,  if  one  grants  to  A.  B.  the  manor 
of  Dale,  this  makes  him  tenant  for  life.  For  though,  as  there  are  no 
words  of  inheritance  or  heirs  mentioned  in  the  grant,  it  cannot 
be  construed  to  be  a  fee,  it  shall  however  be  construed  to  be  as 
large  an  estate  as  the  words  of  the  donation  will  bear,  and  therefore 
an  estate  for  life.  Also  such  a  grant  at  large,  or  a  grant  for  a  term 
of  life  generally,  shall  be  construed  to  be  an  estate  for  the  life  of  the 
grantee;  in  case  the  grantor  hath  authority  to  make  such  grant :  for 
an  estate  for  a  man's  own  life  is  more  beneficial  and  of  a  higher 
nature  than  for  any  other  life;  and  the  rule  of  law  is,  that  all  grants 
are  to  be  taken  most  strongly  against  the  grantor,  unless  in  the  case 
of  the  king. 

Such  estates  for  life  will,  generally  speaking,  endure  as  long  as 
the  life  for  which  they  are  granted :  but  there  are  some  estates  for 
life,  which  may  determine  upon  future  contingencies,  before  the 
life  for  which  they  are  created  expires.  As,  if  an  estate  be  granted 
to  a  woman  during  her  widowhood,  or  to  a  man  until  he  be  promoted 
to  a  benefice;  in  these,  and  similar  cases,  whenever  the  contingency 


ESTATES  589 

happens,  when  the  widow  marries,  or  when  the  grantee  obtains  a 
benefice,  the  respective  estates  are  absolutely  determined  and  gone. 
Yet  while  they  subsist,  they  are  reckoned  estates  for  life;  because, 
the  time  for  which  they  will  endure  being  uncertain,  they  may  by 
possibility  last  for  life,  if  the  contingencies  upon  which  they  are  to 
determine  do  not  sooner  happen.  And  moreover,  in  case  an  estate 
be  granted  to  a  man  for  his  life,  generally,  it  may  also  determine 
by  his  civil  death:  as  if  he  enters  into  a  monastery,  whereby  he  is 
dead  in  law:  for  which  reason  in  conveyances  the  grant  is  usually 
made  "for  the  term  of  a  man's  natural  life";  which  can  only  deter- 
mine by  his  natural  death. 

Tenant  by  the  curtesy  of  England  is  where  a  man  marries  a  woman 
seised  of  an  estate  of  inheritance,  that  is,  of  lands  and  tenements  in 
fee-simple  or  fee-tail,  and  has  by  her  issue,  born  ali\e,  which  was 
capable  of  inheriting  her  estate.  In  this  case,  he  shall  on  the  death 
of  his  wife,  hold  the  lands  for  his  life,  as  tenant  by  the  curtesy  of 
England.  .  .  . 

There  are  four  requisities  necessary  to  make  a  tenancy  by  the 
curtesy;  marriage,  seisin  of  the  wife,  issue,  and  death  of  the  wife. 
1.  The  marriage  must  be  canonical  and  legal.  2.  The  seisin  of 
the  wife  must  be  an  actual  seisin,  or  possession  of  the  lands;  not 
a  bare  right  to  possess,  which  is  a  seisin  in  law,  but  an  actual  posses- 
sion, which  is  a  seisin  in  deed.  And  therefore  a  man  shall  not  be 
tenant  by  the  curtesy  of  a  remainder  or  reversion.  But  of  some 
incorporeal  hereditaments  a  man  may  be  tenant  by  the  curtesy, 
though  there  have  been  no  actual  seisin  of  the  wife;  as  in  case  of 
an  advowson,  where  the  church  has  not  become  void  in  the  lifetime 
of  the  wife;  which  a  man  may  hold  by  the  curtesy,  because  it  is 
impossible  ever  to  have  actual  seisin  of  it,  and  impotentia  excusat 
legem. 

Tenant  in  dower  is  where  the  husband  of  a  woman  is  seised  of 
an  estate  of  inheritance,  and  dies:  in  this  case,  the  wife  shall  have 
the  third  part  of  all  the  lands  and  tenements  whereof  he  was  seised 
at  any  time  during  the  coverture,  to  hold  to  herself  for  the  term  of 
her  natural  life. 

Of  estates  that  are  less  than  freehold,  there  are  three  sorts: 
1.    Estates  for  years :  2.    Estates  at  will ;  3.    Estates  by  sufferance. 


590  PROPERTY 

1.  An  estate  for  years  is  a  contract  for  the  possession  of  lands  or 
tenements  for  some  determinate  period;  and  it  takes  place  where 
a  man  letteth  them  to  another  for  the  term  of  a  certain  number  of 
years,  agreed  upon  between  the  lessor  and  the  lessee,  and  the  lessee 
enters  thereon.  If  the  lease  be  but  for  half  a  year  or  a  quarter,  or 
any  less  time,  this  lessee  is  respected  as  a  tenant  for  years,  and  is 
styled  so  in  some  legal  proceedings;  a  year  being  the  shortest  term 
which  the  law  in  this  case  takes  notice  of. 


Every  estate  which  must  expire  at  a  period  certain  and  prefixed, 
by  whatever  words  created,  is  an  estate  for  years.  And  therefore 
this  estate  is  frequently  called  a  term,  terminus,  because  its  duration 
or  continuance  is  bounded,  limited,  and  determined :  for  every  such 
estate  must  have  a  certain  beginning  and  certain  end.  But  id 
cerium  est,  quod  certum  reddi  potest:  therefore  if  a  man  make  a  lease 
to  another  for  so  many  years  as  J.  S.  shall  name,  it  is  a  good  lease 
for  years;  for  though  it  is  at  present  uncertain,  yet  when  J.  S.  hath 
named  the  years,  it  is  then  reduced  to  a  certainty.  If  no  day  of 
commencement  is  named  in  the  creation  of  this  estate,  it  begins  from 
the  making,  or  delivery,  of  the  lease.  A  lease  for  so  many  years  as 
J.  S.  shall  live  is  void  from  the  beginning;  for  it  is  neither  certain, 
nor  can  ever  be  reduced  to  a  certainty,  during  the  continuance  of 
the  lease.  And  the  same  doctrine  holds,  if  a  parson  make  a  lease 
of  his  glebe  for  so  many  years  as  he  shall  continue  parson  of  Dale; 
for  this  is  still  more  uncertain.  But  a  lease  for  twenty  or  more 
years,  if  J.  S.  shall  so  long  live,  or  if  he  should  so  long  continue 
parson,  is  good:  for  there  is  a  certain  period  fixed,  beyond  which  it 
cannot  last;  though  it  may  determine  sooner,  on  the  death  of  J.  S., 
cr  his  ceasing  to  be  parson  there. 

We  have  before  remarked,  and  endeavored  to  assign  the  reason 
of,  the  inferiority  in  which  the  law  places  an  estate  for  years,  when 
compared  with  an  estate  for  life,  or  an  inheritance:  observing,  that 
an  estate  for  life,  even  if  it  be  pur  outer  vie,  is  a  freehold ;  but  that 
an  estate  for  a  thousand  years  is  only  a  chattel,  and  reckoned  part 
of  the  personal  estate.  Hence  it  follows,  that  a  lease  for  years  may 
be  made  to  commence  infuturo,  though  a  lease  for  life  cannot.  As, 
if  I  grant  lands  to  Titius  to  hold  from  Michaelmas  next  for  twenty 
years,  this  is  good ;  but  to  hold  from  Michaelmas  next  for  the  term 
of  his  natural  life,  is  void.  For  no  estate  of  freehold  can  commence 
in  future;   because  it  cannot  be  created  at  common  law  without 


ESTATES  591 

livery  of  seisin,  or  corporal  possession  of  the  land;  and  corporal 
possession  cannot  be  gi\en  of  an  estate  now,  which  is  not  to  com- 
mence now,  but  hereafter.  And,  because  no  livery  of  seisin  is 
necessary  to  a  lease  for  years,  such  lessee  is  not  said  to  be  seised,  or 
to  have  true  legal  seisin  of  the  lands.  Nor  indeed  does  the  bare  lease 
vest  any  estate  in  the  lessee;  but  only  gives  him  a  right  of  entry  on 
the  tenement,  which  right  is  called  his  interest  in  the  term,  or  interesse 
termini:  but  when  he  has  actually  so  entered,  and  thereby  accepted 
the  grant,  the  estate  is  then,  and  not  before,  vested  in  him,  and  he 
is  possessed,  not  properly  of  the  land,  but  of  the  term  of  years;  the 
possession  or  seisin  of  the  land  remaining  still  in  him  who  hath  the 
freehold.  Thus  the  word  term  does  not  merely  signify  the  time 
specified  in  the  lease,  but  the  estate  also  and  interest  that  passes 
by  that  lease;  and  therefore  the  term  may  expire,  during  the  con- 
tinuance of  the  time;  as  by  surrender,  forfeiture,  and  the  like.  For 
which  reason,  if  I  grant  a  lease  to  A.  for  the  term  of  three  years,  and, 
after  the  expiration  of  the  said  term,  to  B.  for  six  years,  and  A. 
surrenders  or  forfeits  his  lease  at  the  end  of  one  year,  B's  interest 
shall  immediately  take  effect:  but  if  the  remainder  had  been  to  B. 
from  and  after  the  expiration  of  the  said  three  years,  or  from  and 
after  the  expiration  of  the  said  time,  in  this  case  B.'s  interest  will 
not  commence  till  the  time  is  fully  elapsed,  whatever  may  become 
of  A.'s  term. 

The  second  species  of  estates  not  freehold  are  estates  at  will. 
An  estate  at  will  is  where  lands  and  tenements  are  let  by  one  man 
to  another,  to  have  and  to  hold  at  the  will  of  the  lessor;  and  the 
tenant  by  force  of  this  lease  obtains  possession.  Such  tenant 
hath  no  certain  indefeasible  estate,  nothing  that  can  be  assigned 
by  him  to  any  other;  because  the  lessor  may  determine  his  will,  and 
put  him  out  whenever  he  pleases.  But  every  estate  at  will,  is  at 
the  will  of  both  parties,  landlord  and  tenant;  so  that  either  of 
them  may  determine  his  will,  and  quit  his  connection  with  the 
other  at  his  own  pleasure.  Yet  this  must  be  understood  with 
some  restriction.  For  if  the  tenant  at  will  sows  his  land,  and  the 
landlord,  before  the  corn  is  ripe,  or  before  it  is  reaped,  puts  him  out, 
yet  the  tenant  shall  have  the  emblements,  and  free  ingress,  egress 
and  regress,  to  cut  and  carry  away  the  profits.  And  this  for  the 
same  reason  upon  which  all  the  cases  of  emblements  turn;  viz., 
the  point  of  uncertainty:  since  the  tenant  could  not  possibly  know 
when  his  landlord  would  determine  his  will,  and  therefore  could 
make  no  provision  against  it;   and  having  sown  the  land,  which  is 


592  PROPERTY 

for  the  good  of  the  public,  upon  a  reasonable  presumption,  the 
law  will  not  suffer  him  to  be  a  loser  by  it.  But  it  is  otherwise,  and 
upon  reason  equally  good,  where  the  tenant  himself  determines 
the  will;  for  in  this  case  the  landlord  shall  have  the  profits  of  the 
land. 

What  act  does,  or  does  not,  amount  to  a  determination  of  the 
will  on  either  side,  has  formerly  been  matter  of  great  debate  in  our 
courts.  But  it  is  now,  I  think,  settled,  that  (besides  the  express 
determination  of  the  lessor's  will,  by  declaring  that  the  lessee  shall 
hold  no  longer;  which  must  either  be  made  upon  the  land,  or 
notice  must  be  given  to  the  lessee)  the  exertion  of  any  act  of  owner- 
ship by  the  lessor,  as  entering  upon  the  premises  and  cutting 
timber,  taking  a  distress  for  rent,  and  impounding  it  thereon,  or 
making  a  feoffment,  or  lease  for  years  of  the  land  to  commence 
immediately;  any  act  of  desertion  by  the  lessee,  as  assigning  his 
estate  to  another,  or  committing  waste,  which  is  an  act  inconsistent 
with  such  a  tenure;  or,  which  is  instar  omnium,  the  death  or  out- 
lawry of  either  lessor  or  lessee;  puts  an  end  to  or  determines  the 
estate  at  will 


An  estate  at  sufferance  is  where  one  comes  into  possession  of  land 
by  lawful  title,  but  keeps  it  afterwards  without  any  title  at  all.  As 
if  a  man  takes  a  lease  for  a  year,  and  after  a  year  is  expired  continues 
to  hold  the  premises  without  any  fresh  leave  from  the  owner  of  the 
estate.  Or,  if  a  man  maketh  a  lease  at  will  and  dies,  the  estate  at 
will  is  thereby  determined :  but  if  the  tenant  continueth  possession, 
he  is  tenant  at  sufferance.  But  no  man  can  be  tenant  at 
sufferance  against  the  king,  to  whom  no  laches,  or  neglect  in  not 
entering  and  ousting  the  tenant,  is  ever  imputed  by  law;  but  his 
tenant,  so  holding  over,  is  considered  as  an  absolute  intruder.  But 
in  the  case  of  a  subject,  this  estate  may  be  destroyed  whenever  the 
true  owner  shall  make  an  actual  entry  on  the  lands  and  oust  the 
tenant:  for,  before  entry,  he  cannot  maintain  an  action  of  trespass 
against  the  tenant  by  sufferance,  as  he  might  against  a  stranger: 
and  the  reason  is,  because  the  tenant  being  once  in  by  a  lawful  title, 
the  law  (which  presumes  no  wrong  in  any  man)  will  suppose  him  to 
continue  upon  a  title  equally  lawful;  unless  the  owner  of  the  land 
by  some  public  and  avowed  act,  such  as  entry  is,  will  declare  his 
continuance  to  be  tortious,  or,  in  common  language,  wrongful. 


ESTATES  693 

Littleton,  Tenures,  §  19. 

In  every  gift  in  taile  without  more  saying,  the  reversion  of  the 
fee  simple  is  in  the  donor. 

Coke,  Commentary  on  Littleton,  22&. 

A  reversion  is  where  the  residue  of  the  estate  always  doth  con- 
tinue in  him  that  made  the  particular  estate,  or  where  the  particular 
estate  is  derived  out  of  his  estate,  as  here  in  the  case  of  Litt.  tenant 
in  fee  simple  maketh  gift  in  taile;  so  it  is  of  a  lease  for  life,  or  for 
yeares. 

Blackstone,  Commentaries,  II,  163-165. 

An  estate  then  in  remainder  may  be  defined  to  be,  an  estate 
limited  to  take  effect  and  be  enjoyed  after  another  estate  is  deter- 
mined. As  if  a  man  seised  in  fee-simple  granteth  lands  to  A.  for 
twenty  years,  and,  after  the  determination  of  the  said  term,  then 
to  B.  and  his  heirs  forever:  here  A.  is  tenant  for  years,  remainder  to 
B.  in  fee.  In  the  first  place  an  estate  for  years  is  created  or  carved 
out  of  the  fee,  and  given  to  A.;  and  the  residue  or  remainder  of  it 
is  given  to  B.  But  both  these  interests  are  in  fact  only  one  estate; 
the  present  term  of  years  and  the  remainder  afterwards,  when  added 
together,  being  equal  only  to  one  estate  in  fee.  They  are  indeed 
different  parts,  but  they  constitute  only  one  whole:  they  are  carved 
out  of  one  and  the  same  inheritance:  they  are  both  created,  and 
may  both  subsist,  together;  the  one  in  possession,  the  other  in 
expectancy.  So  if  land  be  granted  to  A.  for  twenty  years,  and 
after  the  determination  of  the  said  term,  to  B.  for  life;  and  after 
the  determination  of  B.'s  estate  for  life,  it  be  limited  to  C.  and  his 
heirs  forever;  this  makes  A.  tenant  for  years,  with  remainder  to 
B.  for  life,  remainder  over  to  C.  in  fee.  Now,  here  the  estate  of 
inheritance  undergoes  a  division  into  three  portions:  there  is  first 
A.'s  estate  for  years  carved  out  of  it;  and  after  that  B.'s  estate  for 
life;  and  then  the  whole  that  remains  is  limited  to  C.  and  his  heirs. 
And  here  also  the  first  estate,  and  both  the  remainders,  for  life  and 
in  fee,  are  one  estate  only;  being  nothing  but  parts  or  portions  of 
one  entire  inheritance:  and  if  there  were  a  hundred  remainders,  it 
would  still  be  the  same  thing:  upon  a  principle  grounded  in  mathe- 
matical truth,  that  all  the  parts  are  equal,  and  no  more  than  equal, 
to  the  whole.  And  hence  also  it  is  easy  to  collect,  that  no  remainder 
can  be  limited  after  the  grant  of  an  estate  in  fee-simple:   because  a 


594  PROPERTY 

fee-simple  is  the  highest  and  largest  estate  that  a  subject  is  capable 
of  enjoying;  and  he  that  is  tenant  in  fee  hath  in  him  the  whole  of 
the  estate:  a  remainder  therefore,  which  is  only  a  portion,  or  resi- 
duary part,  of  the  estate  cannot  be  reserved  after  the  whole  is 
disposed  of.  A  particular  estate,  with  all  the  remainders  expectant 
thereon,  is  only  one  fee-simple:  as  £40  is  part  of  £100  and  £60 
is  the  remainder  of  it:  wherefore,  after  a  fee-simple  once  vested, 
there  can  no  more  be  a  remainder  limited  thereon,  than,  after  the 
whole  £100  is  appropriated,  there  can  be  any  residue  subsisting. 


6.     CO-OWNERSHIP 

Blackstone,  Commentaries,  II,  179-181,  184-5,  186-189,  191- 
193,  194. 
We  come  now  to  treat  of  estates,  with  respect  to  the  number  and 
connections  of  their  owners,  the  tenants  who  occupy  and  hold  them. 
And,  considered  in  this  view,  estates  of  any  quantity  or  length  of 
duration,  and  whether  they  be  in  actual  possession  or  expectancy, 
may  be  held  in  four  different  ways;  in  severalty,  in  joint-tenancy, 
in  coparcenary,  and  in  common. 

I.  He  that  holds  lands  or  tenements  in  severalty,  or  is  sole  tenant 
thereof,  is  he  that  holds  them  in  his  own  right  only,  without  any 
other  person  being  joined  or  connected  with  him  in  point  of  interest, 
during  his  estate  therein.  This  is  the  most  common  and  usual 
way  of  holding  an  estate;  and  therefore  we  may  make  the  same 
observations  here  that  we  did  upon  estates  in  possession,  as  contra- 
distinguished from  those  in  expectancy,  in  the  preceding  chapter: 
that  there  is  little  or  nothing  peculiar  to  be  remarked  concerning  it, 
since  all  estates  are  supposed  to  be  of  this  sort,  unless  where  they 
are  expressly  declared  to  be  otherwise;  and  that  in  laying  down 
general  rules  and  doctrines,  we  usually  apply  them  to  such  estates 
as  are  held  in  severalty.  I  shall  therefore  proceed  to  consider  the 
other  three  species  of  estates,  in  which  there  are  alwa\'s  a  plurality 
of  tenants. 

II.  An  estate  in  joint-tenancy  is  where  lands  or  tenements  are 
granted  to  two  or  more  persons,  to  hold  in  fee-simple,  fee-tail,  for 
life,  for  years,  or  at  will.  In  consequence  of  such  grants  an  estate 
is  called  an  estate  in  joint-tenancy,  and  sometimes  an  estate 
in  jointure,  which  word  as  well  as  the  other  signifies  a  union  or 
conjunction    of    interest;     though    in   common   speech    the    term 


CO-OWNERSHIP  595 

jointure  is  now  usually  confined  to  that  joint-estate  which,  by  virtue 
of  thestatute27Hen.  VIII.c.  19,  is  frequently  vested  in  the  husband 
and  wife  before  marriage,  as  a  full  satisfaction  and  bar  of  the 
woman's  dower. 

In  unfolding  this  title,  and  the  two  remaining  ones,  in  the  present 
chapter,  we  will  first  inquire  how  these  estates  may  be  created; 
next,  their  properties  and  respective  incidents;  and  lastly,  how  they 
may  be  severed  or  destroyed. 

1.  The  creation  of  an  estate  in  joint-tenancy  depends  on  the 
wording  of  the  deed  or  devise,  by  which  the  tenants  claim  title: 
for  this  estate  can  only  arise  by  purchase  or  grant,  that  is,  by  the 
act  of  the  parties,  and  never  by  the  mere  act  of  law.  Now,  if  an 
estate  be  given  to  a  plurality  of  persons,  without  adding  any  restric- 
tive, exclusive,  or  explanatory  words,  as  if  an  estate  be  granted  to  A. 
and  B.  and  their  heirs,  this  makes  them  immediately  joint-tenants 
in  fee  of  the  lands.  For  the  law  interprets  the  grant  so  as  to  make 
all  parts  of  it  take  effect,  which  can  only  be  done  by  creating  an 
equal  estate  in  them  both.  As  therefore  the  grantor  has  thus  united 
their  names,  the  law  gives  them  a  thorough  union  in  all  other 
respects.     For, 

2.  The  properties  of  a  joint-estate  are  derived  from  its  unity, 
which  is  fourfold;  the  unity  of  interest,  the  unity  of  title,  the  unity 
of  time,  and  the  unity  of  possession ;  or,  in  other  words,  joint-tenants 
have  one  and  the  same  interest,  accruing  by  one  and  the  same  con- 
^•eyance,  commencing  at  one  and  the  same  time,  and  held  by  one 
and  the  same  undivided  possession. 


From  the  same  principle  also  arises  the  remaining  grand  incident 
of  joint  estates;  viz.,  the  doctrine  of  stirvivorship:  by  which  when 
two  or  more  persons  are  seised  of  a  joint-estate,  of  inheritance,  for 
their  own  lives,  or  pur  auter  vie,  or  are  jointly  possessed  of  any 
chattel  interest,  the  entire  tenancy  upon  the  decease  of  any  of  them 
remains  to  the  survivors,  and  at  length  to  the  last  survivor;  and 
he  shall  be  entitled  to  the  whole  estate,  whatever  it  be,  whether  an 
inheritance,  or  a  common  freehold  only,  or  even  a  less  estate.  This 
is  the  natural  and  regular  consequence  of  the  union  and  entirety 
of  their  interest.  The  interest  of  two  joint-tenants  is  not  only  equal 
or  similar,  but  also  is  one  and  the  same.  One  has  not  originally  a 
distinct  moiety  from  the  other;  but,  if  by  any  subsequent  act  (as 
by  alienation  or  forfeiture  of  either)  the  interest  becomes  separate 


596  PROPERTY 

and  distinct:  the  joint-tenancy  instantly  ceases.  But,  while  it 
continues,  each  of  two  joint-tenants  has  a  concurrent  interest  in  the 
whole ;  and  therefore  on  the  death  of  his  companion,  the  sole  interest 
in  the  whole  remains  to  the  survivor.  For  the  interest  which  the 
survivor  originally  had  is  clearly  not  devested  by  the  death  of  his 
companion ;  and  no  other  person  can  now  claim  to  have  a  joint- 
estate  with  him,  for  no  one  can  now  have  an  interest  in  the  whole, 
accruing  by  the  same  title  and  taking  effect  at  the  same  time  with 
his  own;  neither  can  any  one  claim  a  separate  interest  in  any  part 
of  the  tenements;  for  that  would  be  to  deprive  the  survivor  of  the 
right  which  he  has  in  all  and  every  part.  As  therefore  the  survivor's 
original  interest  in  the  whole  still  remains,  and  as  no  one  can  now 
be  admitted,  either  jointly  or  severally,  to  any  share  with  him  therein, 
it  follows,  that  his  own  interest  must  now  be  entire  and  several,  and 
that  he  shall  alone  be  entitled  to  the  whole  estate  (whatever  it  be) 
that  was  created  by  the  original  grant. 

This  right  of  survivorship  is  called  by  our  ancient  authors  the  jus 
accrescendi,  because  the  right  upon  the  death  of  one  joint-tenant 
accumulates  and  increases  to  the  survivors :  or,  as  they  themselves 
express  it,  "pars  ilia  communis  accrescit  super stitilnis,  de  persona  in 
personam,  usque  ad  ultimam  superstitem."  And  this  jus  accrescendi 
ought  to  be  mutual;  which  I  apprehend  to  be  one  reason  why 
neither  the  king,  nor  any  corporation,  can  be  a  joint-tenant  with 
a  private  person.  For  here  is  no  mutuality:  the  private  person  has 
not  even  the  remotest  chance  of  being  seised  of  the  entirety  by 
benefit  of  survivorship ;  for  the  king  and  the  corporation  can  never 
die. 


III.  An  estate  held  in  coparcenary  is  where  lands  of  inheritance 
descend  from  the  ancestor  to  two  or  more  persons.  It  arises  either 
by  common  law  or  particular  custom.  By  common  law:  as  where 
a  person  seised  in  fee-simple  or  in  fee-tail  dies,  and  his  next  heirs  are 
two  or  more  females,  his  daughters,  sisters,  aunts,  cousins,  or  their 
representatives;  in  this  case  they  shall  all  inherit,  as  will  be  more 
fully  shown  when  we  treat  of  descents  hereafter;  and  these  co-heirs 
are  then  called  coparceners;  or,  for  brevity,  parceners  only.  Par- 
ceners by  particular  custom  are  where  lands  descend,  as  in  gavel- 
kind, to  all  the  males  in  equal  degree  as  sons,  brothers,  uncles,  etc. 
And,  in  either  of  these  cases,  all  the  parceners  put  together  make  but 
one  heir,  and  have  but  one  estate  among  them. 


CO-OWNERSHIP  597 

The  properties  of  parceners  arc  in  some  respects  like  those  of  joint- 
tenants;  they  having  the  same  unities  of  interest,  title,  and  posses- 
sion. They  may  sue  and  he  sued  jointly  for  matters  relating  to  their 
own  lands;  and  the  entry  of  one  of  them  shall  in  some  cases  enure 
as  the  entry  of  them  all.  They  cannot  have  an  action  of  trespass 
against  each  other;  but  herein  they  differ  from  joint-tenants,  that 
they  are  also  excluded  from  maintaining  an  action  of  waste;  for 
coparceners  could  at  all  times  put  a  stop  to  any  waste  by  writ  of 
partition,  but  till  the  statute  of  Henry  the  Eighth  joint-tenants  had 
no  such  power.  Parceners  also  differ  materially  from  joint-tenants 
in  four  other  points.  1.  They  always  claim  by  descent ;  whereas 
joint-tenants  always  claim  by  purchase.  Therefore,  if  two  sisters 
purchased  lands  to  hold  to  them  and  their  heirs,  they  are  not  par- 
ceners, but  joint-tenants;  and  hence  it  likewise  follows,  that  no 
lands  can  be  held  in  coparcenary,  but  estates  of  inheritance,  which 
are  of  a  descendible  nature;  whereas  not  only  estates  in  fee  and  in 
tail,  but  for  life  or  years,  may  be  held  in  joint-tenancy.  2.  There 
is  no  unity  of  time  necessary  to  an  estate  in  coparcenary.  For  if  a 
man  had  two  daughters,  to  whom  his  estate  descends  in  coparcenary, 
and  one  dies  before  the  other;  the  surviving  daughter  and  the  heir 
of  the  other,  or,  when  both  are  dead,  their  two  heirs  are  still  par- 
ceners; the  estates  vesting  in  each  of  them  at  different  times,  though 
it  be  the  same  quantity  of  interest,  and  held  by  the  same  title. 
3.  Parceners,  though  they  have  a  unity,  have  not  an  entirety  of 
interest.  They  are  properly  entitled  each  to  the  whole  of  a  distinct 
moiety;  and  of  course  there  is  no  jus  accrescendi,  or  survivorship 
between  them :  for  each  part  descends  severally  to  their  respective 
heirs,  though  the  unity  of  possession  continues.  And  as  long  as 
the  lands  continue  in  a  course  of  descent,  and  united  in  possession, 
so  long  are  the  tenants  therein,  whether  male  or  female,  called  par- 
ceners. But  if  the  possession  be  once  severed  by  partition,  they  are 
no  longer  parceners,  but  tenants  in  severalty;  or  if  one  parcener 
alienes  her  share,  though  no  partition  be  made,  then  are  the  lands 
no  longer  held  in  coparcenary,  but  \n  common. 

IV.  Tenants  in  common  are  such  as  hold  by  several  and  distinct 
titles,  but  by  unity  of  possession;  because  none  knoweth  his  own 
severalty,  and  therefore  they  all  occupy  promiscuously.  This  ten- 
ancy therefore  happens  where  there  is  a  unity  of  possession  merely, 
but  perhaps  an  entire  disunion  of  interest,  of  title  and  of  time. 
For  if  there  be  two  tenants  in  common  of  lands,  one  may  hold  his 


598  PROPERTY 

part  in  fee-simple,  the  other  in  tail,  or  for  life;  so  that  there  is  no 
necessary  unity  of  interest:  one  may  hold  by  descent,  the  other  by 
purchase;  or  the  one  by  purchase  from  A.,  the  other  by  purchase 
from  B.;  so  that  there  is  no  unity  of  title;  one's  estate  may  have 
been  vested  fifty  years,  the  other's  but  yesterday;  so  there  is  no 
unity  of  time.  The  only  unity  there  is,  is  that  of  possession :  and 
for  this  Littleton  gives  the  true  reason,  because  no  man  can  certainly 
tell  which  part  is  his  own:  otherwise  even  this  would  be  soon 
destroyed. 

Tenancy  in  common  may  be  created,  either  by  the  destruction 
of  the  two  other  estates,  in  joint-tenancy  and  coparcenary,  or  by 
special  limitation  in  a  deed.  By  the  destruction  of  the  two  other 
estates,  I  mean  such  destruction  as  does  not  sever  the  unity  of 
possessioH,  but  only  the  unity  of  title  or  interest.  As,  if  one  of  two 
joint-tenants  in  fee  alienes  his  estate  for  the  life  of  the  alienee, 
the  alienee  and  the  other  joint-tenant  are  tenants  in  common;  for 
they  have  now  several  titles,  the  other  joint-tenant  by  the  original 
grant,  the  alienee  by  the  new  alienation ;  and  they  also  have  several 
interests,  the  former  joint-tenant  in  fee-simple,  the  alienee  for  his 
own  life  only.  So,  if  one  joint-tenant  gives  his  part  to  A.  in  tail, 
and  the  other  gives  his  to  B.  in  tail,  the  donees  are  tenants  in  com- 
mon, as  holding  by  different  titles  and  conveyances.  If  one  of  two 
parceners  alienes,  the  alienee  and  the  remaining  parcener  are 
tenants  in  common;  because  they  hold  by  different  titles,  the 
parcener  by  descent,  the  alienee  by  purchase.  So  likewise,  if  there 
be  a  grant  to  two  men,  or  two  women,  and  the  heirs  of  their  bodies, 
here  the  grantees  shall  be  joint-tenants  of  the  life-estate,  but  they 
shall  have  several  inheritances;  because  they  cannot  possibly  have 
one  heir  of  their  two  bodies,  as  might  have  been  the  case  had  the 
limitation  been  to  a  man  and  woman,  and  the  heirs  of  their  bodies 
begotten :  and  in  this,  and  the  like  cases,  their  issue  shall  be  tenants 
in  common ;  because  they  must  claim  by  different  titles,  one  as  heir 
of  A.,  and  the  other  as  heir  of  B. ;  and  those  two  not  titles  by  pur- 
chase, but  descent.  In  short,  whenever  an  estate  in  joint-tenancy 
or  coparcenary  is  dissolved,  so  that  there  be  no  partition  made, 
but  the  unity  of  possession  continues,  it  is  turned  into  a  tenancy 
in  common. 

As  to  the  incidents  attending  a  tenancy  in  common:  tenants  in 
common  (like  joint-tenants)  are  compellable  by  the  statutes  of 
Henry  VIII.  and  William  III.,  before  mentioned,  to  make  partition 


CO-OWNERSHIP  599 

of  their  lands ;  which  they  were  not  at  common  law.  They  properly 
take  by  distinct  moieties,  and  ha\e  no  entirety  of  interest ;  and 
therefore  there  is  no  survivorship  between  tenants  in  common. 
Their  other  incidents  are  such  as  merely  arise  from  the  unity  of 
possession ;  and  are  therefore  the  same  as  appertain  to  joint-tenants 
merely  upon  that  account :  such  as  being  liable  to  reciprocal  actions 
of  waste,  and  of  account,  by  the  statutes  of  Westm.  2,  c.  22,  and 
4  Anne,  c.  16.  For  by  the  common  law  no  tenant  in  common  was 
liable  to  account  with  his  companion  for  embezzling  the  profits 
of  the  estate;  though,  if  one  actually  turns  the  other  out  of  posses- 
sion, an  action  of  ejectment  will  lie  against  him.  But,  as  for  other 
incidents  of  joint-tenants,  which  arise  from  the  privity  of  title,  or 
the  union  and  entirety  of  interest,  (such  as  joining  or  being  joined 
in  actions  unless  in  the  case  where  some  entire  or  indivisible  thing 
is  to  be  recovered,)  these  are  not  applicable  to  tenants  in  common 
whose  interests  are  distinct,  and  whose  titles  are  not  joint  but 
several. 

Kent,  Commentaries,  IV,  361. 

The  common  law  favored  title  by  joint-tenancy,  by  reason  of 
this  very  right  of  survivorship.  Its  policy  was  averse  to  the  division 
of  tenures,  because  it  tended  to  multiply  the  feudal  services  and 
weaken  the  efficacy  of  that  connection.  But  in  Hawes  v.  Hawes, 
1  Wils.  Rep.  165,  Lord  Hardwicke  observed  that  the  reason  of  that 
policy  had  ceased  with  the  abolition  of  tenures;  and  bethought  that 
even  the  courts  of  law  were  no  longer  inclined  to  favor  them,  and, 
at  any  rate,  they  were  not  favored  in  equity,  for  they  were  a  kind 
of  estates  that  made  no  provision  for  posterity.  As  an  instance 
of  the  equity  view  of  the  subject,  we  find  that  the  rule  of  survivor- 
ship is  not  applied  to  the  case  of  money  loaned  by  two  or  more  credi- 
tors on  a  joint  mortgage.  The  right  of  survivorship  is  also  rejected 
in  all  cases  of  partnerships,  for  it  would  operate  \ery  unjustly  in 
such  cases.  In  this  country  the  title  by  joint-tenancy  is  very  much 
reduced  in  extent,  and  the  incident  of  survivorship  is  still  more 
extensively  destroyed,  except  where  it  is  proper  and  necessary,  as 
in  the  case  of  titles  held  by  trustees. 

New  York  Real  Property  Law,  §  66. 

Every  estate  granted  or  devised  to  two  or  more  persons  in  their 
own  right  shall  be  a  tenancy  in  common,  unless  expressly  declared 
to  be  in  joint  tenancy;    but  every  estate,  vested  in  executors  or 


600  PROPERTY 

trustees  as  such,  shall  be  held  by  them  in  joint  tenancy.     This 
section  shall  apply  as  well  to  estates  already  created  or  vested  as  to 
estates  hereafter  granted  or  devised. 
[This  was  originally  enacted  in  1786.] 

Smith,  Personal  Property,  §  27. 

The  principal  incidents  of  ownership  in  common  are: 

First.  The  possession  of  one  is  the  possession  of  all,  and  all  are 
equally  entitled  to  possession. 

Second.  One  cannot  maintain  an  action  against  his  co-tenant 
to  recover  possession  of  the  common  property;  but  he  may  have  an 
action  of  tort  against  him  for  its  conversion  or  destruction.  A 
use  of  property  which  amounts  to  destruction  or  spoliation  consti- 
tutes conversion  and  will  authorize  an  action  by  those  injured. 

Third.  The  interest  of  one  is  subject  to  levy  and  sale  by  execu- 
tion for  his  debts;  but  if  the  ofhcer  sell  the  whole  property,  and  not 
merely  the  interest  of  the  judgment  debtor,  he  will  be  liable  to  an 
action  by  the  other  co-owner  for  his  undivided  interest. 

Fourth.  One  owner  in  common  of  chattels  may  recover  from 
another  any  money  properly  expended  on  it  beyond  his  due  pro- 
portion; but  there  must  have  been  a  previous  request  to  join  in 
making  the  necessary  repairs,  unless  there  exist  som.e  agreement 
or  prescription  binding  either  party  exclusively  to  make  repairs. 

Fifth.  Where  personal  property  in  common  bulk  and  of  the  same 
quality,  severable  in  its  nature,  is  owned  by  two  or  more  persons 
in  common,  each  may  sever  and  appropriate  his  share  if  it  can  be 
determined  by  measurement  or  weight,  without  the  consent  of  the 
bthers,  and  without  liability  to  an  action  for  the  conversion  of  the 
common  property. 

Sixth.  Owners  in  common  of  personal  property  may  maintain 
a  suit  in  equity  for  partition;  and  in  case  a  division  be  impracti- 
cable, they  may  have  a  decree  for  the  sale  of  liie  common  property, 
and  a  division  of  the  proceeds.  But  they  are  not  entitled  to  com- 
pensation from  each  other  for  services  rendered  in  the  care  of  the 
common  property,  in  the  absence  of. an  agreement  to  that  effect. 

7.     INCIDENTS  OF  OWNERSHIP 

Hearn,  Theory  oe  Legal  Duties  and  Rights,  186. 

The  rights  which  collectively  constitute  ownership  are  the  right 
to  possess,  the  right  to  use,  the  right  to  the  produce,  the  right  to 


INCIDENTS  OF  OWNERSHIP  .    GOl 

waste,  the  right  of  disposition,  whether  ckiring  Hfe  or  upon  death, 
and  the  right  to  exckule  all  other  persons  from  any  interference 
with  the  thing  owned.  In  the  language  of  the  C\\\\ia.ns,  dominhim 
includes  jus  possidendi,  jus  utendi,  jus  Jniendi,  jus  abutendi,  jus 
disponendi,  and  jus  prohihendi. 

Coke,  Commentary  on  Littleton,  4a. 

"Land,"  Term,  in  the  legal  signification,  comprehendeth  any- 
ground,  soile,  or  earth  whatsoever;  as  meadowes,  pastures,  woods, 
moores,  waters,  marishes,  furscs,  and  heath.  .  .  It  legally  includeth 
also  all  castles,  houses,  and  other  buildings:  for  castles,  houses,  etc., 
consist  upon  two  things,  viz.  land  or  ground,  as  the  foundation  or 
structure  thereupon;  so  as  passing  the  land  or  ground,  the  structure 
or  building  thereupon  passeth  therewith. 

Also,  the  waters  that  yeeld  fish  for  the  food  and  sustenance  of 
man  are  not  by  that  name  demandable  in  a  praecipe;  but  the  land 
whereupon  the  water  floweth  or  standeth  is  demandable;  as  for 
example,  viginti  acras  terrae  aqua  coopertas:  and  besides,  the  earth 
doth  furnish  man  with  many  other  necessaries  for  his  use,  as  it  is 
replenished  with  hidden  treasures;  namely,  with  gold,  siher,  brasse, 
iron,  tynne,  leade,  and  other  metals,  and  also  with  a  great  varietie 
of  precious  stones,  and  many  other  things  for  profit,  ornament,  and 
pleasure.  And  lastly,  the  earth  hath  in  law  a  great  extent  upwards, 
not  only  of  water,  as  hath  been  said,  but  of  ayre  and  all  other  things 
even  up  to  heaven;  for  cujus  est  solum,  ejus  est  tisque  ad  caelum  as 
is  holden  14  H.  8.  fo.  12;  22  Hen.  6.  59;  10  E.  4.  14;  Registrum 
origin,  and  in  other  bookes. 

Broom,  Legal  Maxims  (8  ed.),  314. 

QuiCQUiD  plantatur  solo  solo  CEBIT.  —  Whatever  is  affixed 
to  the  soil  belongs  thereto. 

It  may  be  stated,  as  a  general  rule  of  great  antiquity,  that  what- 
ever is  affixed  to  the  soil  becomes,  in  contemplation  of  \a.\v,  a  part 
of  it,  and  is  subjected  to  the  same  rights  of  property  as  the  soil 
itself.  In  the  Institutes  of  the  Civil  Law  it  is  laid  down,  that  if  a 
man  build  on  his  own  land  with  the  materials  of  another,  the 
owner  of  the  soil  becomes,  in  law,  the  owner  also  of  the  building: 
quia  omne  quod  solo  inaedificatur  solo  cedit.  In  this  case,  indeed, 
the  property  in  the  materials  used  still  continued  in  the  original 
owner;  and  although,  by  a  law  of  the  XII.  Tables,  the  object  of 
which  was  to  prevent  the  destruction  of  buildings,  he  was  unable, 


602  PROPERTY 

unless  the  building  were  taken  down,  to  reclaim  the  materials  in 
specie,  he  was,  nevertheless,  entitled  to  recover  double  their  value 
as  compensation  by  the  action  de  tigno  jtmcto.  On  the  other  hand, 
if  a  person  built,  with  his  own  materials,  on  the  land  of  another, 
the  house  likewise  belonged  to  the  owner  of  the  soil ;  for  in  this  case, 
the  builder  was  presumed  intentionally  to  have  transferred  his  prop- 
erty in  the  materials  to  such  owner.  In  like  manner,  if  trees  were 
planted  or  seed  sown  in  the  land  of  another,  the  owner  of  the  soil 
became  owner  also  of  the  tree,  the  plant,  or  the  seed,  as  soon  as  it 
had  taken  root.  And  this  latter  proposition  is  fully  adopted, 
almost  in  the  words  of  the  civil  law,  by  our  own  law  writers —  Britton, 
Bracton,  and  the  author  of  Fleta. 

Blackstone,  Commentaries,  II,  122-123. 

Tenant  for  life,  or  his  representatives,  shall  not  be  prejudiced 
by  any  sudden  determination  of  his  estate,  because  such  a  deter- 
mination is  contingent  and  uncertain.  Therefore  if  a  tenant  for 
his  own  life  sows  the  lands  and  dies  before  harvest,  his  executors 
shall  have  the  emblements  or  profits  of  the  crop:  for  the  estate  was 
determined  by  the  act  of  God,  and  it  is  a  maxim  in  the  law,  that 
actus  Dei  nemirii  facit  injtiriam.  The  representatives,  therefore, 
of  the  tenant  for  life,  shall  have  the  emblements  to  compensate  for 
the  labour  and  expense  of  tilling,  manuring  and  sowing  the  lands; 
and  also  for  the  encouragement  of  husbandry,  which  being  a  public 
benefit,  tending  to  the  increase  and  plenty  of  provisions,  ought  to 
have  the  utmost  security  and  privilege  that  the  law  can  give  it. 
Wherefore  by  the  feudal  law,  if  a  tenant  for  life  died  between  the 
beginning  of  September  and  the  end  of  February,  the  lord,  who  was 
entitled  to  the  reversion,  was  also  entitled  to  the  profits  of  the  whole 
year;  but  if  he  died  between  the  beginning  of  March  and  the  end 
of  August,  the  heirs  of  the  tenant  received  the  whole.  From  hence 
our  law  of  emblements  seems  to  have  been  derived,  but  with  very 
considerable  improvements.  So  it  is,  also,  if  a  man  be  tenant  for  the 
life  of  another,  and  cestui  que  vie,  or  he  on  whose  life  the  land  is  held, 
dies  after  the  corn  sown,  the  tenant  pur  aider  vie  shall  have  the  em- 
blements. The  same  is  also  the  rule,  if  a  life  estate  be  determined 
by  the  act  of  law.  Therefore  if  a  lease  be  made  to  husband  and  wife 
during  coverture  (which  gives  them  a  determinable  estate  for  life), 
and  the  husband  sows  the  land,  and  afterwards  they  are  divorced 
a  vinculo  matrimonii,  the  husband  shall  have  the  emblements  in 
this  case;  for  the  sentence  of  divorce  is  the  act  of  law.     But  if  an 


INCIDENTS  OF  OWNERSHIP  603 

estate  for  life  be  determined  by  the  tenant's  own  act  (as,  by  for- 
feiture for  waste  committed;  or,  if  a  tenant  during  widowhood 
thinks  proper  to  marry),  in  these,  and  similar  cases,  the  tenants, 
having  thus  determined  the  estate  by  their  own  acts,  shall  not  be 
entitled  to  take  the  emblements.  The  doctrine  of  emblements 
extends  not  only  to  corn  sown,  but  to  roots  planted,  or  other  annual 
artificial  profit,  but  it  is  otherwise  of  fruit  trees,  grass,  and  the  like; 
which  are  not  planted  annually  at  the  expense  and  labour  of  the 
tenant,  but  are  either  a  permanent  or  natural  profit  of  the  earth. 
For  when  a  man  plants  a  tree,  he  cannot  be  presumed  to  plant  it  in 
contemplation  of  any  present  profit ;  but  merely  with  a  prospect  of 
its  being  useful  to  him  in  future,  and  to  future  successionsof  tenants. 


\n  Blades  v.  Higgs,  11  H.  L.  Cas.,  631,  Lord  Westbury  says:  My  Lords,  when 
it  is  said  by  writers  on  the  Common  Law  of  England  that  there  is  a  qualified  or 
special  right  of  property  in  game,  that  is  in  animals /erae  naturae  which  are  fit  for 
the  food  of  man,  whilst  they  continue  in  their  wild  state,  I  apprehend  that  the 
word  "property"  can  mean  no  more  than  the  exclusive  right  to  catch,  kill  and 
appropriate  such  animals,  which  is  sometimes  called  by  the  law  a  reduction  of  them 
into  possession. 

This  right  is  said  in  law  to  exist  ratione  soli,  or  ratione  privilegii  for  I  omit  the 
two  other  heads  of  property  in  game  which  are  stated  by  Lord  Coke,  namely 
propter  indnstriam  and  ratione  impotentiae,  for  these  grounds  apply  to  animals 
which  are  not  in  the  proper  sense  ferae  naturae.  Property  ratione  soli  is  the  com- 
mon law  right  which  every  owner  of  land  has  to  kill  and  take  all  such  animals 
ferae  naturae  as  may  from  time  to  time  be  found  on  his  land,  and  <j.s  soon  as  this 
right  is  exercised  the  animal  so  killed  or  caught  becomes  the  absolute  property 
of  the  owner  of  the  soil. 

Property  ratione  privilegii  is  the  right  which,  by  a  peculiar  franchise  anciently 
granted  by  the  Crown  in  virtue  of  its  prerogative,  one  man  had  of  killing  and 
taking  a  nivnaXs  ferae  naturae  on  the  land  of  another;  and  in  like  manner  the  game, 
when  killed  or  taken  by  virtue  of  the  privilege,  became  the  absolute  property  of 
the  owner  of  the  franchise,  just  as  in  the  other  case  it  becomes  the  absolute  property 
of  the  cwner  of  the  scil. 

[But  see  Cooley,  Torts,  436;  Ex  parte  Bailey,  155  Cal.  472;  Greer  v.  Connecticut, 
161  U.  S.  519.] 

In  Birmingham  v.  Allen,  6  Ch.  Div.  284,  Jessel,  M.  R.,  says:  As  I  understand, 
the  law  was  settled  by  the  House  of  Lords,  confirming  the  decision  of  the  Court 
of  Exchequer  Chamber  in  the  case  of  Backhouse  v.  Bonomi,  9  H.  L.  C.  503,  that 
every  landowner  in  the  kingdom  has  a  right  to  the  support  of  his  land  in  its  natural 
state.  It  is  not  an  easement:  it  is  a  right  of  property.  That  being  so,  if  the 
plaintiff's  land  had  been  in  its  natural  state,  no  doubt  the  defendants  must  not 
do  anything  to  let  that  land  slip,  or  go  down,  or  subside. 

In  Embrey  v.  Owen,  6  Ex.  353,  Parke,  B.,  says:  The  right  to  have  the  stream 
to  flow  in  its  natural  state  without  diminution  or  alteration  is  an  incident  to  the 


604  PROPERTY 

property  in  the  land  through  which  it  passes;  but  flowing  water  is  publici  juris,  not 
in  the  sense  that  it  is  a  bonum  vacans,  to  which  the  first  occupant  may  acquire 
an  exclusive  right,  but  that  it  is  public  and  common  in  this  sense  only,  that  all 
may  reasonably  use  it  who  have  a  right  of  access  to  it,  that  none  can  have  any 
property  in  the  water  itself,  except  in  the  particular  portion  which  he  may  choose 
to  abstract  from  the  stream  and  take  into  his  possession,  and  that  during  the  time 
of  his  possession  only;  see  5  B.  &  Ad.  24.  But  each  proprietor  of  the  adjacent 
land  has  the  right  to  the  usufruct  of  the  stream  which  flows  through  it. 

The  right  to  the  benefit  and  advantage  of  the  water  flowing  past  his  land  is 
not  an  absolute  and  exclusive  right  to  the  flow  of  all  the  water  in  its  natural 
state;  if  it  were,  the  argument  of  the  learned  counsel,  that  every  abstraction  of 
it  would  give  a  cause  of  action,  would  be  irrefragable;  but  it  is  a  right  only  to  the 
flow  of  the  water,  and  the  enjoyment  of  it,  subject  to  the  similar  rights  of  all  the 
proprietors  of  the  banks  on  each  side  to  the  reasonable  enjoyment  of  the  same 
gift  of  Providence. 


8.  RIGHTS  IN  ANOTHER'S  PROPERTY 

Hearn,  Theory  of  Legal  Duties  and  Rights,  209. 

There  are  certain  rights  that  are  usually  known  by  the  abbre- 
viated phrase  j«ra  in  re,  and  that  are  fully  described  as  jura  in  rem  in 
re  aliena.  They  are,  or  at  all  events  belong  to,  the  "res  incorporates," 
the  "ea  quae  in  jure  consistunt,"  of  the  Roman  jurists,  the  incor- 
poreal hereditaments  of  English  law.  The  examples  which  Black- 
stone  enumerates  are  advowsons,  tithes,  commons,  ways,  offices, 
dignities,  franchises,  corodies  or  pensions,  annuities,  and  rents.  I 
am  not  concerned  to  defend  this  enumeration.  It  sufficiently  illus- 
trates the  nature  of  the  rights  in  question.  Perhaps  in  modern  law 
it  might  be  sufficient  to  speak  of  easements,  licenses,  public  rights 
of  way,  whether  by  land  or  water,  franchises,  and  annuities,  or  other 
charges.  When  two  or  more  persons  have  different  interests  in  the 
same  property,  the  matter  may  be  regarded  under  different  aspects. 
We  may  look  at  the  quantity  of  interest  of  the  smaller  holder,  or  we 
may  look  at  the  diminution  of  the  enjoyment  of  the  larger  holder. 
The  former  is  the  stand-point  of  our  law;  the  latter  is  that  of  the 
Romans  and  of  their  descendants.  Accordingly,  that  part  of  the 
law  which  we  describe  as  treating  of  modes  of  ownership  or  limited 
interests  the  Romans  called  the  law  of  servitudes  or  burthens  upon 
property.  There  are  certain  other  rights  ifi  re  aliena,  which,  although 
they  are  equally  with  the  larger  interests  rights  in  rem,  our  law- 
agrees  with  the  Roman  law  in  regarding  not  as  estates  in  land  but. 
as  burthens  upon  it.  Of  these  rights  one  is  that  class  of  "real  servi- 
tudes," or  servitutes  rerum,  which  we  call  casements. 


RIGHTS  IN  ANOTHER'S   PROPERTY  605 

SCHEME  OF  RIGHTS  IX  ANOTHER'S  PROPERTY  LN  ANGLO- 
AMERICAN  LAW 

f  Profits 

I  Easements 

(a)  Servitudes^  Covenants  running  with  the  land 
Equitable    servitudes    (equitable    easements, 

covenants  running  with  property  in  equity) 

r  Pledge 
j  Mortgage 

(b)  Securities    -I  Common-law  liens 

I  Statutory  liens 

1^  Equitable  charges  or  liens 

A  servitude  is  a  burden  resting  upon  some  particular  piece  of  property  for  the 
benefit  of  a  person  (in  which  case  it  is  said  to  be  personal  or  in  gross)  or  of  another 
piece  of  property  (in  which  case  it  is  said  to  be  praedial  or  to  be  appurtenant  to 
the  latter  property)  whereby  the  former  (spoken  of  as  the  servient  property,  tene- 
ment or  estate)  is  said  to  serve  the  latter.  If  the  servitude  is  praedial  or  appur- 
tenant, the  property  for  the  benefit  whereof  it  exists  is  said  to  be  the  dominant 
property,  tenement  or  estate.  In  Anglo-American  law,  all  servitudes  are  appur- 
tenant except  profits,  which  may  be  either  in  gross  or  appurtenant. ^  The  ser- 
vitude may  bind  the  owner  of  the  servient  property  to  permit  the  owner  of  the 
servitude  or  the  owner  for  the  time  being  of  the  dominant  property  to  take  some- 
thing from  the  servient  property,  whether  produce,  as  a  right  to  pasture  cattle  on 
another's  land,  or  some  incident  of  ownership  of  the  soil,  as  a  right  to  mine  on 
another's  land.  In  such  case,  it  is  called  a  profit.  Or  the  servitude  may  bind 
the  owner  of  the  servient  property  to  permit  the  owner  of  the  dominant  property 
for  the  time  being  to  do  something  upon  the  servient  property,  or  may  restrict 
the  use  cf  the  servient  property  for  the  benefit  of  the  dominant  property.  In  such 
case  it  is  called  an  easement.  Examples  are,  a  right  of  way,  a  right  to  maintain  a 
ditch  or  drain  across  another's  land,  a  right  to  use  another's  wall  in  building  on 
one's  land  adjoining,  and  in  England  a  right  to  have  light  and  air  unobstructed  by 
buildings  on  the  servient  land.  Such  servitudes  are  created  by  grant  or  acquired 
by  prescription  (long  adverse  use).  Restrictions  upon  the  use  of  land  may  be 
imposed  upon  an  estate  in  the  land  for  the  benefit  of  the  reversion  by  covenant 
and  in  that  case  the  covenant  is  said  to  run  with  the  land,  that  is  the  estate  for 
life  or  for  years  is  a  servient  estate  and  the  reversion  a  dominant  estate  with  respect 
to  the  servitude  thereby  created.  In  the  United  States  this  imposition  of  restric- 
tions by  covenant  which  will  run  with  the  land  at  law  is  permitted  in  some  cases 
upon  conveyance  of  a  fee  simple.  For  the  most  part,  however,  if  restrictions 
may  be  imposed  on  conveyance  of  a  fee,  it  must  be  by  way  of  equitable  servitudes 
(equitable  easements,  covenants  running  with  the  land  in  equity)  which  are 
cognizable  and  enforceable  only  in  equity  and  hence  are  not  available  against  a 
purchaser  for  value  without  notice  as  a  legal  servitude  would  be.  The  common 
law  recognizes  servitudes  in  land  only.  But  equitable  servitudes  may  exist  to 
some  extent  with  respect  to  personal  property. 

'  There  is  some  question  in  America  as  to  easements  in  gross. 


606  PROPERTY 

Servitudes  leave  the  substance  of  the  thing  subject  thereto  undisturbed.  A 
security  or  lien  gives  a  right  to  the  holder  thereof  to  hold  another's  property  as 
security  for  the  payment  of  a  debt  or  performance  of  an  act  or  even  to  appropriate 
such  property  or  the  proceeds  of  sale  by  way  of  satisfaction.  A  pledge  is  a  bail- 
ment of  personal  property  by  way  of  security.  In  case  of  default,  the  legal 
remedy  today  is  to  sell  the  property  pledged,  after  notice  to  the  pledgor,  and  apply 
the  proceeds  to  satisfaction  of  the  claim  secured.  A  mortgage,  whether  of  land 
or  of  chattels,  is  at  common  law  a  conveyance  upon  condition  subsequent  by  way 
of  security.  The  condition  is  that  if  a  debt  is  paid  or  other  act  performed  at  the 
time  and  in  the  manner  provided,  the  conveyance  shall  become  void,  otherwise 
to  remain  in  full  force  and  efifect.  Accordingly  if  the  condition  is  performed,  the 
title  of  the  mortgagee  comes  to  an  end  and  the  property  is  once  more  in  the  mort- 
gagor; if  the  condition  is  not  performed,  the  conveyance  becomes  absolute  and 
the  legal  title  is  indefeasibly  in  the  mortgagee.  But  equity  regards  the  mortgagor 
as  in  substance  the  owner  and  looks  upon  the  mortgage  as  in  substance  a  security 
only.  Hence  it  will  allow  the  mortgagor  to  redeem,  that  is  to  pay  the  debt  and 
obtain  a  reconveyance,  unless  this  right  to  redeem  (called  the  equity  of  redemp- 
tion) is  cut  off  by  foreclosure.  A  foreclosure  is  had  in  equity  by  decree  requiring 
redemption  within  a  time  fixed  by  the  court  or  in  default  thereof  directing  sale 
of  the  property  and  satisfaction  of  the  debt  out  of  the  proceeds.  There  are 
statutes  in  many  jurisdictions  providing  for  legal  foreclosure  by  sale.  Also  in 
many  jurisdictions  by  statute  the  mortgagor  is  owner  of  the  property  and  the 
mortgagee  has  merely  a  power  to  have  it  sold  by  way  of  satisfaction  in  case  of 
default. 

Kent,  Commentaries,  II,  634-635,  636-637. 

A  general  lien  is  the  right  to  retain  the  property  of  another,  for 
a  general  balance  of  accounts;  but  a  particular  lien  is  a  right  to 
retain  it  only  for  a  charge  on  account  of  labor  employed  or  expenses 
bestowed  upon  the  identical  property  detained.  The  former  is 
taken  strictly,  but  the  latter  is  favored  in  law.  The  right  rests  on 
principles  of  natural  equity  and  commercial  necessity,  and  it  pre- 
vents circuity  of  action  and  gives  security  and  confidence  to  agents. 

Where  a  person,  from  the  nature  of  his  occupation,  is  under 
obligation,  according  to  his  means,  to  receive,  and  be  at  trouble 
and  expense  about  the  personal  property  of  another,  he  has  a  particu- 
lar lien  upon  it;  and  the  law  has  given  this  privilege  to  persons  con- 
cerned in  certain  trades  and  occupations,  which  are  necessary  for 
the  accommodation  of  the  public.  Upon  this  ground,  common  car- 
riers, inn-keepers,  and  farriers,  had  a  particular  lien  by  the  common 
law;  for  they  were  bound,  as  Lord  Holt  said,  to  serve  the  public  to 
the  utmost  extent  and  ability  of  their  employment,  and  an  action 
lies  against  them  if  they  refuse,  without  adequate  reason.  But 
though  the  right  of  lien  probably  originated  in  those  cases  in  which 
there  was  an  obligation,  arising  out  of  the  public  employment,  to 


RIGHTS  IN  ANOTHER'S  PROPERTY  607 

receive  the  goods,  it  is  not  now  confined  to  that  class  of  persons; 
and,  in  a  variety  of  cases,  a  person  has  a  right  to  detain  goods 
deli\'crcd  to  him  to  liave  labor  bestowed  on  them,  who  would  not 
be  obliged  to  reccixc  the  goods,  in  the  first  instance,  contrary  to 
his  inclination.  It  is  now  the  general  rule,  that  every  bailee  for 
hire,  who,  by  his  labor  and  skill,  has  imparted  an  additional  value 
to  the  goods,  has  a  lien  upon  the  property  for  his  reasonable  charges. 
A  tailor,  or  dyer,  is  not  bound  to  accept  an  employment  from  any 
one  that  offers  it,  and  yet  they  haxe  a  particular  lien,  l)y  the  common 
law  upon  the  cloth  placed  in  their  hands  to  be  dyed,  or  worked  up 
into  a  garment.  The  same  right  applies  to  a  miller,  printer,  tailor, 
wharfinger,  or  whoever  takes  property  in  the  way  of  his  trade  or 
occupation,  to  bestow  labor  or  expense  upon  it;  and  it  extends  to 
the  whole  of  one  entire  work  upon  one  single  subject,  in  like  manner 
as  a  carrier  has  a  lien  on  the  entire  cargo  for  his  whole  freight.  The 
lien  exists  equally,  whether  there  be  an  agreement  to  pay  a  stipu- 
lated price,  or  only  an  implied  contract  to  pay  a  reasonable  price. 

A  general  lien  for  a  balance  of  accounts  is  founded  on  custom, 
and  is  not  favored;  and  it  requires  strong  evidence  of  a  settled 
and  uniform  usage,  or  of  a  particular  mode  of  dealing  between  the 
parties,  to  establish  it.  General  liens  are  looked  at  with  jealousy, 
because  they  encroach  upon  the  common  law,  and  destroy  the  equal 
distribution  of  the  debtor's  estate  among  his  creditors. 

But  by  the  custom  of  the  trade,  an  agent  may  have  a  lien  upon  the 
property  of  his  employer,  intrusted  to  him  in  the  course  of  that 
trade,  not  only  in  respect  to  the  management  of  that  property,  but 
for  his  general  balance  of  accounts.  The  usage  of  any  trade  suf- 
ficient to  establish  a  general  lien,  must,  however,  have  been  so  uni- 
form and  notorious,  as  to  warrant  the  inference  that  the  party  against 
whom  the  right  is  claimed  had  knowledge  of  it.  This  general  lien 
may  also  be  created  by  express  agreement. 

By  statutes  liens  are  now  given  in  many  other  cases,  sometimes  to  bailees,  as 
at  common  law,  sometimes  to  persons  who  have  not  possession,  as  in  the  case  of 
mechanics'  and  laborers'  liens.  These  statutory  liens  are  made  enforceable  by 
sale  or,  as  in  the  case  of  mechanics'  liens,  by  judicial  foreclosure. 

Equity  also  imposes  liens  or  charges  upon  property  in  order  to  prevent  unjust 
enrichment  of  one  at  the  expense  of  another  or  in  order  to  give  effect  to  the  sub- 
stance as  contrasted  with  the  form  of  transactions.  Examples  are,  contracts  to 
give  mortgages  or  pledges  which  are  treated  in  equity  as  creating  a  lien  at  once, 
though  the  necessary  legal  transactions  to  carry  out  the  contract  are  not  had, 
expenditure  of  money  by  a  co-owner  upon  the  property  owned  in  common, 


608  PROPERTY 

where  in  certain  cases  equity  requires  the  shares  of  the  other  co-owners  to  stand 
as  security,  and  in  England  and  many  of  the  United  States,  conveyance  of  land 
to  a  purchaser  who  has  not  paid  the  purchase  money  or  part  of  it,  in  which  case 
the  land  is  subjected  in  equity  to  a  lien  in  favor  of  the  vendor  for  such  money. 
Equitable  liens  are  not  available  against  purchasers  for  value  without  notice. 


9.    ACQUISITION  OF  PROPERTY 

Baron,  Text  Book  of  the  Modern  Roman  Law  iPandekten)    §  130 

1.  We  call  a  mode  of  acquisition  derivative  if  the  ownership  of  him  who  acquires 
is  based  upon  that  of  him  who  previously  owned  it ;  he  who  acquires  the  property 
is  the  successor  of  the  previous  owner,  and  he  acquires  it  to  the  extent  that  the 
latter  had  it.  The  effect  of  the  derivative  mode  of  acquisition  rests  either  upon 
the  will  of  the  previous  owner  (as  in  case  of  delivery,  testamentary  succession, 
legacy)  or  upon  a  judicial  decree  (as  in  adjudication,  ....  execution  of  a 
judicial  decision)  or  finally  upon  a  statutory  direction  (as  in  intestate  succession 
and  the  forfeiture  of  property).  .  .  . 

2.  We  call  a  mode  of  acquisition  original  if  the  ownership  of  him  who  acquires 
does  not  rest  upon  the  right  of  another.  This  is  the  case  not  only  if  no  ownership 
in  the  thing  existed  before  the  acquisition  (as  in  case  of  things  newly  coming  into 
existence,  and  ownerless  things),  but  also  if,  indeed,  ownership  already  existed  in 
a  person,  but  there  is  no  connection  between  the  ownership  of  this  person  and 
that  of  him  who  acquires.  Accordingly,  modes  of  original  acquisition  fall  into 
two  classes:  (1)  acquisition  of  things  newly  arising  or  hitherto  ownerless,  (2) 
acquisition  of  things  formerly  owned  by  some  one.  In  the  first  class  belong 
acquisition  of  fructus,  .  .  .  through  occupation,  through  specification,  .  .  ; 
in  the  second  class,  acquisition  by  confusion  and  accession,  and  by  adverse 
possession.  , 

SCHEME  OF  MODES  OF  ACQUISITION  IN  ANGLO-AMERICAN   LAW 

f  [Goods  of  an  alien  enemy] 

^  Abandoned  chattels 

-  Occupancy -<^  . 

Wild  anmials 

1^  Fruits  of  land 

Alluvion 

Sale  for  taxes 

Sale  under  judgment  m  rem  (e.g.  for  forfeiture  under  revenue  laws) 

Adverse  possession,  prescription 

Accession 

Confusion 


Original 


Judgment 


Marriage 

Bankruptcy 

Derivative      „  .       (  intestate  }  „       .   ^      „  ,„ 

-<  Succession  s  >-  See  ttitra  §  10 

(^  testamentary  ) 

Gift 

Sale 

^Conveyance 


ACQUISITION  OF  PROPERTY  609 

Blackstone,  Commkntaries,  II,  401-405. 

1.  Thus,  in  the  first  place,  it  halh  been  said,  that  any  body  may 
seize  to  his  own  use  such  goods  as  belong  to  an  alien  enemy.  For 
such  enemies,  not  being  looked  upon  as  members  of  our  society,  are 
not  entitled  during  their  state  of  enmity  to  the  benefit  or  pro- 
tection of  the  laws;  and  therefore  e\cry  man  that  has  opportunity 
is  permitted  to  seize  upon  their  chattels,  without  being  compelled, 
as  in  other  cases,  to  make  restitution  or  satisfaction  to  the  owner. 
But  this,  however  generally  laid  down  by  some  of  our  waiters,  must 
in  reason  and  justice  be  restrained  to  such  captors  as  are  authorized 
by  the  pulilic  authority  of  the  state,  residing  in  the  crown;  and  to 
such  goods  as  are  brought  into  this  country  by  an  alien  enemy, 
after  a  declaration  of  war,  without  a  safe-conduct  or  passport.  And, 
therefore,  it  hath  been  holden,  that  where  a  foreigner  is  resident  in 
England,  and  afterwards  a  war  breaks  out  between  his  country  and 
ours,  his  goods  are  not  liable  to  be  seized.  .   .  . 

2.  Thus,  again,  whatever  movables  are  found  upon  the  surface 
of  the  earth,  or  in  the  sea,  and  are  unclaimed  by  any  owner,  are  sup- 
posed to  be  abandoned  by  the  last  proprietor;  and,  as  such,  are 
returned  into  the  common  stock  and  mass  of  things:  and  therefore 
they  belong,  as  in  a  state  of  nature,  to  the  first  occupant  or  fortunate 
finder,  unless  they  fall  within  the  description  of  waifs,  or  estrays, 
or  wreck,  or  hidden  treasure;  for  these,  we  ha\e  formerly  seen,  are 
vested  by  law  in  the  king,  and  form  a  part  of  the  ordinary  revenue 
of  the  crown. 

4.  With  regard,  likewise,  to  animals  ferae  naturae  all  mankind 
had  by  the  original  grant  of  the  Creator  a  right  to  pursue  and  take 
any  fow'l  or  insect  of  the  air,  any  fish  or  inhabitant  of  the  w'aters, 
and  any  beast  or  reptile  of  the  field :  and  this  natural  right  still  con- 
tinues in  every  individual,  unless  where  it  is  restrained  by  the  laws 
of  the  country.  And  when  a  man  has  once  so  seized  them,  they 
become  while  living  his  qualified  property,  or  if  dead,  are  absolutely 
his  own:  so  that  to  steal  them,  or  otherwise  invade  this  property, 
is,  according  to  their  respective  values,  sometimes  a  criminal 
offense,  sometimes  only  a  civil  injury.  The  restrictions  which  are 
laid  upon  this  right,  by  the  laws  of  England,  relate  principally  to 
royal  fish,  as  w^hale  and  sturgeon,  and  such  terrestrial,  aerial,  or 
aquatic  animals  as  go  under  the  denomination  of  <^ome;  the  taking 
of  which  is  made  the  exclusive  right  of  the  prince,  and  such  of  his 
sul)jects  to  w hom  he  has  granted  the  same  royal  privilege.     But 


610  PROPERTY 

those  animals  which  are  not  expressly  so  reserved,  are  still  liable 
to  be  taken  and  appropriated  by  any  of  the  king's  subjects,  upon 
their  own  territories;  in  the  same  manner  as  they  might  have  taken 
even  game,  itself,  till  these  civil  prohibitions  were  issued;  there 
being  in  nature  no  distinction  between  one  species  of  wild  animals 
and  another,  between  the  right  of  acquiring  property  in  a  hare  or  a 
squirrel,  in  a  partridge  or  a  butterfly:  but  the  difference,  at  present 
made,  arises  merely  from  the  positive  municipal  law. 

5.  To  this  principle  of  occupancy,  also,  must  be  referred  the 
method  of  acquiring  a  special  personal  property  in  corn  growing  on 
the  ground,  or  other  emblements,  by  any  possessor  of  the  land  who 
hath  sown  or  planted  it,  whether  he  be  owner  of  the  inheritance,  or 
of  a  less  estate,  which  emblements  are  distinct  from  the  real  estate 
in  the  land,  and  subject  to  many,  though  not  all,  the  incidents 
attending  personal  chattels.  They  were  devisable  by  testament 
before  the  statute  of  wills,  and  at  the  death  of  the  owner  shall  vest 
in  his  executor  and  not  his  heir;  they  are  forfeitable  by  .outlawry  in 
a  personal  action;  and  by  the  statute  11  Geo.  II,  c.  19,  though  not 
by  the  common  law,  they  may  be  distreined  for  rent  arrere.  The 
reason  for  admitting  the  acquisition  of  this  special  property,  by 
tenants  who  have  temporary  interests,  was  formerly  given ;  and  it 
was  extended  to  tenants  in  fee,  principally  for  the  benefit  of  their 
creditors:  and  therefore,  though  the  emblements  are  assets  in  the 
hands  of  the  executor,  are  forfeitable  upon  outlawry,  and  distrein- 
able  for  rent,  they  are  not  in  other  respects  considered  as  personal 
chattels';  and  particularly  they  are  not  the  object  of  larceny  before 
they  are  severed  from  the  ground. 

6.  The  doctrine  of  property  arising  from  accession  is  also  grounded 
on  the  right  of  occupancy.  By  the  Roman  law,  if  any  given  cor- 
poreal substance  received  afterwards  an  accession  by  natural  or 
by  artificial  means,  as  by  the  growth  of  vegetables,  the  pregnancy 
of  animals,  the  embroidering  of  cloth,  or  the  conversion  of  wood 
or  metal  into  vessels  and  utensils,  the  original  owner  of  the  thing 
was  entitled,  by  his  right  of  possession,  to  the  property  of  it  under 
such  its  state  of  improvement :  but  if  the  thing  itself,  by  such  opera- 
tion, was  changed  into  a  different  species,  as  by  making  wine,  oil, 
or  bread  out  of  another's  grapes,  olives,  or  wheat,  it  belonged  to 
the  new  operator;  who  was  only  to  make  a  satisfaction  to  the  for- 
mer proprietor  for  the  materials  which  he  had  so  converted.  And 
these  doctrines  are  implicitly  copied  and  adopted  by  our  Bracton, 
and  have  since  been  confirmed  by  many  resolutions  of  the  courts. 


ACQUISITION  OF  PROPERTY  611 

It  hath  even  been  held,  that  if  one  takes  away  and  clothes  another's 
wife  or  son,  and  afterwards  they  return  home,  the  garments  shall 
cease  to  be  his  property  who  provided  them,  being  annexed  to  the 
person  of  the  child  or  woman. 

7.  But  in  the  case  of  confusion  of  goods,  where  those  of  two 
persons  cire  so  intermixed  that  the  several  portions  can  be  no  longer 
distinguished,  the  English  law  partly  agrees  with,  and  partly  differs 
from,  the  civil.  If  the  intermixture  be  by  consent,  I  apprehend  that 
in  both  laws  the  proprietors  have  an  interest  in  common,  in  pro- 
portion to  their  respective  shares.  But  if  one  willfully  intermixes 
his  money,  corn,  or  hay,  with  that  of  another  man,  without  his  appro- 
bation or  knowledge,  or  casts  gold  in  like  manner  into  another's  melt- 
ing pot  or  crucible,  the  civil  law,  though  it  gives  the  sole  property 
of  the  whole  to  him  who  has  not  interfered  in  the  mixture,  yet 
allows  a  satisfaction  to  the  other  for  what  he  has  so  improvidently 
lost.  But  our  law,  to  guard  against  fraud,  gives  the  entire  property, 
without  any  account,  to  him  whose  original  dominion  is  invaded 
and  endeavored  to  be  rendered  uncertain  without  his  own  consent. 

Blackstone,  Commentaries,  II,  198-199. 

If  a  disseisor  turns  me  out  of  possession  of  my  lands,  he  thereby 
gains  a  mere  naked  possession,  and  I  still  retain  the  right  of  possession, 
and  right  of  property.  If  the  disseisor  dies,  and  the  land  descend 
to  his  son,  the  son  gains  an  apparent  right  of  possession;  but  I  still 
retain  the  actual  right  both  of  possession  and  property.  If  I  acquiesce 
for  thirty  years  without  bringing  any  action  to  recover  possession 
of  the  lands,  the  son  gains  the  actual  right  of  possession,  and  I  retain 
nothing  but  the  mere  right  of  property.  And  even  this  right  of 
property  will  fail,  or  at  least  it  will  be  without  a  remedy,  unless  I 
pursue  it  within  the  space  of  sixty  years. 

Cooley's  Note  to  the  foregoing  extract. 

The  term  is  now  twenty  years;  see  the  statute  of  3  and  4  Wm. 
IV,  c.  27,  s.  2.  And  by  that  statute  it  is  provided  that  the  right 
and  title  of  the  person  who  might,  within  the  time  limited,  have  had 
the  proper  remedy,  but  who  has  failed  to  resort  to  it,  shall  be 
extinguished. 

In  general,  twenty  years,  after  the  right  accrues,  will  be  found 
to  be  the  period  limited  by  statute  in  the  American  states,  within 
which   the  owner  must  bring  action   for  recovery  of  real  estate. 


612  PROPERTY 

Exceptions  are  generally  made  in  these  statutes  in  favor  of  infants, 
married  women,  insane  persons,  persons  beyond  the  seas,  and  some- 
times other  classes. 

DiGBY,  History  of  the  Law  of  Real  Property,  Chap.  X,  §  1. 
Before  the  passing  of  the  Prescription  Act  ^  this  mode  of  acquiring 
rights  in  alieno  solo  was  regarded  exclusively  as  a  species  of  title  by 
grant,  differing  only  from  an  express  grant  in  the  evidence  by  which 
it  was  established.  If  it  be  pro^'ed  that  the  right  has  been  in  fact 
enjoyed  as  far  back  as  memory  can  trace  it,  and  no  origin  of  the 
right  be  shown,  the  presumption  is  that  it  has  been  enjoyed  from 
time  immemorial,  that  is,  from  some  period  anterior  to  the  first 
year  of  Richard  I.,  the  time  at  which  legal  memory  commences,  and 
that  it  was  created  before  that  period  by  the  owner  of  the  soil.  And 
even  if  the  right  were  shown  to  have  been  created  within  the  time 
of  legal  memory,  juries  were  directed,  when  the  right  was  in  ques- 
tion, to  presume  that  as  a  fact  the  right  had  been  expressly  granted 
by  the  owner  of  the  soil,  and  that  the  grant  had  been  lost.  This 
mode  of  supporting  rights  was  felt  to  be  most  unsatisfactory,  and 
at  length  the  Prescription  Act  was  passed,  by  which  a  perfect  title 
to  easements  and  profits  is  conferred  upon  persons  who  have  enjoyed 
them  as  of  right  continuously  for  certain  periods  of  time  specified 
in  the  Act.  Its  provisions  are  somewhat  complicated,  but  the 
practical  effect  is  that  the  enjo^^ment  of  an  easement,  as,  for  in- 
stance, of  a  way  or  of  the  access  of  light  and  air  through  a  window 
for  twenty  years,  and  the  enjoyment  of  a  profit  a  prendre,  as,  for 
instance,  of  pasturage  on  a  common,  for  thirty  years,  works  the 
acquisition  of  the  right.  The  enjoyment  must,  except  in  the  case 
of  light,  be  by  a  person  claiming  right  thereto,  hence  it  may  be 
defeated  by  showing  that  it  has  been  enjoyed  avowedly  in  exercise 
of  some  continuing  permission  or  authority  of  the  owner  of  the  soil. 


Smith,  Personal  Property  (2  ed.)  103-104. 

In  actions  of  trover,  or  of  de  bonis  asportatis,  if  the  plaintiff 
recovers  judgment,  and  obtains  satisfaction,  the  title  to  the  property 
in  question  is  transferred  to  the  defendant ;  the  damages  recovered 
being  regarded  as  the  price  of  the  chattel  so  transferred  by  operation 
of  law. 

12  &  3  Will.  IV.,  c.  7L 


ACQUISITION  OF  PROPERTY  613 

It  is  a  mooted  question  whether  the  recovery  of  judgment  alone, 
without  satisfaction,  will  transfer  the  title  to  the  property  in  ques- 
tion to  the  defendant.  There  are  cases,  English  and  American, 
holding  the  affirmative  of  the  question  on,  at  least,  plausible  grounds ; 
on  the  other  hand,  there  are  numerous  cases  holding  the  negative, 
the  judgment  being  regarded  as  a  security  merely,  leaving  the  title 
to  the  property  in  the  plaintiff  until  payment  of  the  price  represented 
by  the  judgment. 

Blackstone,  Commentaries,  II,  440-441. 

Gifts  then,  or  grants,  which  are  the  eighth  method  of  transferring 
personal  property,  are  thus  to  be  distinguished  from  each  other, 
that  gifts  are  always  gratuitous,  grants  are  upon  some  consideration 
or  equivalent;  and  they  may  be  divided,  with  regard  to  their 
subject-matter,  into  gifts  or  grants  of  chattels  real,  and  gifts  or 
grants  of  chattels  personal.  Under  the  head  of  gifts  or  grants  of 
chattels  real,  may  be  included  all  leases  for  years  of  land,  assign- 
ments, and  surrenders  of  those  leases;  and  all  the  other  methods 
of  conveying  an  estate  less  than  freehold,  which  were  considered 
in  the  twentieth  chapter  of  the  present  book,  and  therefore  need 
not  be  here  again  repeated:  though  these  very  seldom  carry  the 
outward  appearance  of  a  gift,  however  freely  bestowed;  being 
usually  expressed  to  be  made  in  consideration  of  blood,  or  natural 
affection,  or  of  five  or  ten  shillings  nominally  paid  to  the  grantor; 
and,  in  case  of  leases,  always  reserving  a  rent,  though  it  be  but  a 
pepper  corn:  any  of  which  considerations  will,  in  the  eye  of  thelaw, 
convert  the  gift,  if  executed,  into  a  grant;  if  not  executed,  into  a 
contract. 

Grants  or  gifts,  of  chattels  personal,  are  the  act  of  transferring 
the  right  and  the  possession  of  them ;  whereby  one  man  renounces, 
and  another  man  immediately  acquires,  all  title  and  interest  therein, 
which  may  be  done  either  in  writing,  or  by  word  of  mouth,  attested 
by  sufficient  evidence,  of  which  the  delivery  of  possession  is  the 
strongest  and  most  essential.  But  this  conveyance,  when  merely 
voluntary,  is  somewhat  suspicious;  and  is  usually  construed  to 
be  fraudulent,  if  creditors  or  others  become  sufferers  thereby.  And, 
particularly,  by  statute  3  Hen.  VII,  c.  4,  all  deeds  of  gifts  of  goods, 
made  in  trust  to  the  use  of  the  donor,  shall  be  void:  because  other- 
wise persons  might  be  tempted  to  commit  treason  or  felony,  without 
danger  of  forfeiture;  and  the  creditors  of  the  donor  might  also  be 
defrauded  of  their  rights.     And  by  statute  13  Eliz.  c.  5,  every  grant 


614  '  PROPERTY 

or  gift  of  chattels,  as  well  as  lands,  with  an  intent  to  defraud  creditors 
or  others,  shall  be  void  as  against  such  persons  to  whom  such  fraud 
would  be  prejudicial;  but,  as  against  the  grantor  himself,  shall 
stand  good  and  effectua';  and  all  persons  partakers  in,  or  privy  to, 
such  fraudulent  grants,  shall  forfeit  the  whole  value  of  the  goods, 
one  moiety  to  the  king,  and  another  moiety  to  the  party  grieved ; 
and  also  on  conviction  shall  suffer  imprisonment  for  half  a  year. 

A  true  and  proper  gift  or  grant  is  always  accompanied  with  delivery 
of  possession,  and  takes  effect  immediately,  as  if  A  gives  to  B  £100, 
or  a  flock  of  sheep,  and  puts  him  in  possession  of  them  directly,  it 
is  then  a  gift  executed  in  the  donee;  and  it  is  not  in  the  donor's 
power  to  retract  it,  though  he  did  it  without  any  consideration  or 
recompense:  unless  it  be  prejudicial  to  creditors;  or  the  donor  were 
under  any  legal  incapacity,  as  infancy,  coverture,  duress,  or  the 
like;  or  if  he  were  drawn  in,  circumvented  or  imposed  upon,  by 
false  pretenses,  ebriety  or  surprise.  But  if  the  gift  does  not  take 
effect,  by  delivery  of  immediate  possession,  it  is  then  not  properly 
a  gift,  but  a  contract;  and  this  a  man  cannot  be  compelled  to  per- 
form, but  upon  good  and  sufficient  consideration. 

Kent,  Commentaries,  II,  468,  492-493. 

A  sale  is  a  contract  for  the  transfer  of  property  from  one  per- 
son to  another,  for  a  valuable  consideration;  and  three  things  are 
requisite  to  its  validity,  viz.,  the  thing  sold,  which  is  the  object  of  the 
contract,  the  price,  and  the  consent  of  the  contracting  parties. 

(1.)  Of  the  Thing  Sold. — The  thing  sold  must  have  an  actual 
or  potential  existence,  and  be  specific  or  identified,  and  capable  of 
delivery,  otherwise  it  is  not  strictly  a  contract  of  sale  but  a  special 
or  executory  agreement.  If  the  subject-matter  of  the  sale  be  in 
existence,  and  only  constructively  in  the  possession  of  the  seller, 
as  by  being  in  the  possession  of  his  agent  or  carrier  abroad,  it  is, 
nevertheless,  a  sale,  though  a  conditional  or  imperfect  one,  depending 
on  the  future  actual  delivery.  But  if  the  article  intended  to  be  sold 
has  no  existence,  there  can  be  no  contract  of  sale. 

When  the  terms  of  sale  are  agreed  on,  and  the  bargain  is  struck, 
and  everything  that  the  seller  has  to  do  with  the  goods  is  complete, 
the  contract  of  sale  becomes  absolute  as  between  the  parties,  without 
actual  payment  or  delivery,  and  the  property  and  the  risk  of  accident 
to  the  goods  vest  in  the  buyer.  He  is  entitled  to  the  goods  on  pay- 
ment or  tender  of  the  price,  and  not  otherwise,  when  nothing  is 


ACQUISITION  OF  PROPERTY  615 

said  at  the  sale  as  to  the  time  of  delivery,  or  tiie  time  of  payment. 
The  payment  or  tender  of  the  price  is,  in  such  cases,  a  condition 
precedent,  implied  in  the  contract  of  sale,  and  the  buyer  cannot 
take  the  goods,  or  sue  for  them,  without  paymeift;  for,  though  the 
vendee  acquires  a  right  of  properly  by  the  contract  of  sale,  he  does 
not  acquire  a  right  of  possession  of  the  goods  until  he  pays  or  tenders 
the  price.  But  if  the  goods  are  sold  upon  credit,  and  nothing  is 
agreed  upon  as  to  the  time  of  delivering  the  goods,  the  vendee  is 
immediately  entitled  to  the  possession,  and  the  right  of  possession 
and  the  right  of  property  vest  at  once  in  him;  though  the  right  of 
possession  is  not  absolute,  but  is  liable  to  be  defeated,  if  he  becomes 
insolvent  before  he  obtains  possession.  If  the  seller  has  even 
despatched  the  goods  to  the  buyer,  and  insolvency  occurs,  he  has 
a  right,  in  virtue  of  his  original  ownership,  to  s'top  them  in  transitu; 
for,  though  the  property  is  vested  in  the  buyer,  so  as  to  subject  him 
to  the  risk  of  any  accident,  he  has  not  an  indefeasible  right  to  the 
possession;  and  his  insolvency,  without  payment  of  the  price, 
defeats  that  right,  equally  after  the  transitus  has  begun,  as  before 
the  seller  has  parted  with  the  actual  possession  of  the  goods. 

Blackstone,  Commentaries,  II,  310-311,  348,  357-360. 

A  feoffment,  feoff  amentum,  is  a  substantive  derived  from  the  verb, 
to  enfeoff,  feoff  are  or  infeudare,  to  give  one  a  feud ;  and  therefore 
feoffment  is  properly  donatio  feudi.  It  is  the  most  ancient  method 
of  conveyance,  the  most  solemn  and  public,  and  therefore  the  most 
easily  remembered  and  proved.  And  it  may  properly  be  defined, 
the  gift  of  any  corporeal  hereditament  to  another.  He  that  so 
gives,  or  enfeoffs,  is  called  the  feoffor;  and  the  person  enfeoffed  is 
denominated  the  feoffee. 

This  is  plainly  derived  from,  or  is  indeed  itself  the  very  mode  of, 
the  ancient  feodal  donation ;  for  though  it  may  be  performed  by 
the  word  "enfeoff''  or  "grant,"  yet  the  aptest  word  of  feoffment  is, 
"do"  or  "dediy  And  it  is  still  directed  and  governed  by  the  same 
feodal  rules;  insomuch  that  the  principal  rule  relating  to  the  extent 
and  effect  of  the  feodal  grant,  "tenor  est  qui  legem  datfeudo,"  is  in 
other  words  become  the  maxim  of  our  law  with  relation  to  enfeoff- 
ments, "modus  legem  dat  donationi."  And  therefore,  as  in  pure 
feodal  donations,  the  lord,  from  whom  the  feud  moved,  must 
expressly  limit  and  declare  the  continuance  or  quantity  of  estate 
which  he  meant  to  confer,  "we  quis  plus  donasse  praesumatur  quam 
in  donatione  expresserit" ;  so,  if  one  grants  by  feoffment  lands  or 


616  PROPERTY 

tenements  to  another,  and  limits  or  expresses  no  estate,  the  grantee 
(due  ceremonies  of  law  being  performed)  hath  barely  an  estate  for 
life.  For  as  the  personal  abilities  of  the  feoffee  were  originally 
presumed  to  be  the  immediate  or  principal  inducements  to  the 
feoffment,  the  feoffee's  estate  ought  to  be  confined  to  his  person, 
and  subsist  only  for  his  life;  unless  the  feoffor,  by  express  provision 
in  the  creation  and  constitution  of  the  estate,  hath  given  it  a  longer 
continuance.  These  express  provisions  are  indeed  generally  made; 
for  this  was  for  ages  the  only  conveyance  whereby  our  ancestors 
were  wont  to  create  an  estate  in  fee-simple,  by  giving  the  land  to 
the  feoffee,  to  hold  to  him  and  his  heirs  forever;  though  it  serves 
equally  well  to  convey  any  other  estate  or  freehold. 

But  by  the  mere  words  of  the  deed  the  feoffment  is  by  no  means 
perfected :  there  remains  a  very  material  ceremony  to  be  performed, 
called  livery  of  seisin;  without  which  the  feoffee  has  but  a  mere 
estate  at  will.  This  livery  of  seisin  is  no  other  than  the  pure  feodal 
investiture,  or  delivery  of  corporeal  possession,  of  the  land  or  tene- 
ment ;  which  was  held  absolutely  necessary  to  complete  the  donation. 
"  Nam  feudum  sine  investitura  nullo  modo  constitui  potuit"  and  an 
estate  was  then  only  perfect,  when,  as  the  author  of  Fleta  expresses 
it  in  our  law,  "fit  juris  et  seisinae  conjunctio." 

A  fine  is  sometimes  said  to  be  a  feoffment  of  record ;  though  it 
might  with  more  accuracy  be  called  an  acknowledgment  of  a  feoff- 
ment on  record.  By  which  is  to  be  understood,  that  it  has  at  least 
the  same  force  and  effect  with  a  feoffment,  in  the  conveying  and 
assuring  cf  lands:  though  it  is  one  of  those  methods  of  transferring 
estates  of  freehold  by  the  common  law,  in  which  livery  of  seisin  is 
not  necessary  to  be  actually  given;  the  supposition  and  acknowl- 
edgment thereof  in  a  court  of  record,  however  fictitious,  inducing 
an  equal  notoriety.  But,  more  particularly,  a  fine  may  be  described 
to  be  an  amicable  composition  or  agreement  of  a  suit,  either  actual  or 
fictitious,  by  leave  of  the  king  or  his  justices:  whereby  the  lands 
in  question  become,  or  are  acknowledged  to  be,  the  right  of  one  of 
the  parties.  In  its  original  it  was  founded  on  an  actual  suit,  com- 
menced at  law  for  recovery  of  the  possession  of  land  or  other  here- 
ditaments; and  the  possession  thus  gained  by  such  composition  was 
found  to  be  so  sure  and  effectual  that  fictitious  actions  were,  and 
continue  to  be,  every  day  commenced,  for  the  sake  of  obtaining 
the  same  security. 


ACQUISITION  OF  PROPERTY  017 

A  common  recovery  is  so  far  like  a  fine,  that  it  is  a  suit  of  action, 
either  actual  or  fictitious:  and  in  it  the  lands  are  recovered  against 
the  tenant  of  the  freehold;  which  recovery,  being  a  supposed 
adjudication  of  the  right,  binds  all  persons,  and  vests  a  free  and 
absolute  fee-simple  in  the  recoveror.  A  recovery,  therefore,  being 
in  the  nature  of  an  action  at  law,  not  immediately  compromised 
like  a  fine,  but  carried  on  through  every  regular  stage  of  proceed- 
ing, I  am  greatly  apprehensive  that  its  form  and  method  will  not 
be  easily  understood  by  the  student  who  is  not  yet  acquainted  with 
the  course  of  judicial  proceedings;  which  cannot  1  e  thoroughly 
explained  till  treated  of  at  large  in  the  third  book  of  these  com- 
mentaries. However,  I  shall  endeavor  to  state  its  nature  and 
progress,  as  clearly  and  concisely  as  I  can;  avoiding,  as  far  as 
possible,  all  technical  terms  and  phrases  not  hitherto  interpreted. 

Let  us,  in  the  first  place,  suppose  David  Edwards  to  be  tenant 
of  the* freehold,  and  desirous  to  suffer  a  common  recovery,  in  order 
to  bar  all  entails,  remainders,  and  reversions,  and  to  convey  the 
same  in  fee-simple  to  Francis  Golding.  To  effect  this,  Golding  is 
to  bring  an  action  against  him  for  the  lands;  and  he  accordingly 
sues  out  a  w'rit,  called  a  praecipe  quod  reddat,  because  those  were  its 
initial  or  most  operative  words  when  the  law  proceedings  were  in 
Latin.  In  this  writ  the  demandant  Golding  alleges  that  the  defend- 
ant Edwards  (here  called  the  tenant)  has  no  legal  title  to  the  land; 
but  that  he  came  into  possession  of  it  after  one  Hugh  Hunt  had 
turned  the  demandant  out  of  it.  The  subsequent  proceedings  are 
made  up  into  a  record  or  recovery-roll,  in  which  the  writ  and  com- 
plaint of  the  demandant  are  first  recited:  whereupon  the  tenant 
appears,  and  calls  upon  one  Jacob  Morland,  who  is  supposed,  at 
the  original  purchase  to  have  warranted  the  title  to  the  tenant;  and 
thereupon  he  prays,  that  the  said  Jacob  Morland  may  be  called  in 
to  defend  the  title  which  he  so  warranted.  This  is  called  the 
voucher,  vocatio,  or  calling  of  Jacob  Morland  to  warranty;  and  Mor- 
land is  called  the  vouchee.  L^pon  this,  Jacob  Morland,  the  Aouchee, 
appears,  is  impleaded,  and  defends  the  title.  Whereupon  Golding, 
the  demandant,  desires  leave  of  the  court  to  imparl,  or  confer  with 
the  vouchee  in  private:  which  is  (as  usual)  allowed  him.  And 
soon  afterward  the  demandant,  Golding,  returns  to  court,  but  Mor- 
land, the  vouchee,  disappears,  or  makes  default.  Whereupon  judg- 
ment is  given  for  the  demandant,  Golding,  now  called  the  recoveror, 
to  recover  the  lands  in  question,  against  the  tenant,  Edwards,  who 
i'"  now  the  recoveree;    and  Edwards  has  judgment  to  recover  of 


618  PROPERTY 

Jacob  Morland  lands  of  equal  value,  in  recompense  for  the  lands 
so  warranted  by  him,  and  now  lost  by  his  default ;  which  is  agreeable 
to  the  doctrine  of  warranty  mentioned  in  the  preceding  chapter. 
This  is  called  the  recompense,  or  recovery  in  value.  But  Jacob 
Morland  having  no  lands  of  his  own,  being  usually  the  crier  of  the 
court  (who,  from  being  frequently  thus  vouched,  is  called  the 
common  vouchee),  it  is  plain  that  Edwards  has  only  a  nominal  recom- 
pense for  the  land  so  recovered  against  him  by  Golding;  which  lands 
are  now  absolutely  vested  in  the  said  recoveror  by  judgment  of  law, 
and  seisin  thereof  is  delivered  by  the  sheriff  of  the  county.  So  that 
this  collusive  recovery  operates  merely  in  the  nature  of  a  conveyance 
in  fee-simple,  from  Edwards  the  tenant  in  tail,  to  Golding,  the 
purchasor.  .  . 

To  such  awkward  shifts,  such  subtle  refinements,  and  such  strange 
reasoning  were  our  ancestors  obliged  to  have  recourse,  in  order  to 
get  the  better  of  that  stubborn  statute  de  donis.  The  design  for 
which  these  contrivances  were  set  on  foot  was  certainly  laudable; 
the  unriveting  the  fetters  of  estates-tail,  w^hich  were  attended  with 
a  legion  of  mischiefs  to  the  commonwealth :  but,  while  we  applaud 
the  end,  we  cannot  admire  the  means.   .  .  . 

The  force  and  effect  of  common  recoveries  may  appear,  from  what 
has  been  said,  to  be  an  absolute  bar  not  only  of  all  estates-tail,  but 
of  remainders  and  reversions  expectant  on  the  determination  of 
such  estates.  So  that  a  tenant  in  tail  may,  by  this  method  of 
assurance,  convey  the  lands  held  in  tail  to  the  recoveror,  his  heirs 
and  assigns,  absolutely  free  and  discharged  of  all  conditions  and 
limitations  in  tail,  and  of  all  remainders  and  reversions. 

New  York  Real  Property  Law,  §§  241-242. 

§  241.  The  conveyance  of  real  property  by  feoffment,  with 
livery  of  seizin,  or  by  fines,  or  common  recoveries,  is  abolished. 

§  242.  An  estate  or  interest  in  real  property,  other  than  a  lease 
for  a  term  not  exceeding  one  year,  or  any  trust  or  power,  over  or 
concerning  real  property  or  in  any  manner  relating  thereto,  can  not 
be  created,  granted,  assigned,  surrendered  or  declared,  unless  by 
act  or  operation  of  law,  or  by  a  deed  or  conveyance  in  writing, 
subscribed  by  the  person  creating,  granting,  assigning,  surrender- 
ing or  declaring  the  same,  or  by  his  lawful  agent,  thereunto  author- 
ized by  writing.  But  this  section  does  not  affect  the  power  of  a 
testator  in  the  disposition  of  his  real  property  by  will;  nor  prevent 
any  trust   from  arising  or  being  extinguished  by  implication  or 


SUCCESSION  619 

operation  of  law,  nor  any  declaration  of  trust  from  being  proved 
by  a  writing  subscribed  by  the  pers(Mi  declaring  the  same. 

10.     SUCCESSION  1 

Blackstone,  Commentaries,  II,  201. 

The  methods  therefore  of  acquiring  on  the  one  hand,  and  of  losing 
on  the  other,  a  title  to  estates  in  things  real,  are  reduced  by  our  law 
to  two;  descent,  where  the  title  is  vested  in  a  man  by  the  single 
operation  of  law:  and  purchase,  where  the  title  is  vested  in  him  by 
his  own  act  or  agreement. 

Descent,  or  hereditary  succession,  is  the  title  whereby  a  man  on 
the  death  of  his  ancestor  acquires  his  estate  by  right  of  representa- 
tion, as  his  heir  at  law.  An  heir,  therefore,  is  he  upon  whom  the 
law  casts  the  estate  immediately  on  the  death  of  the  ancestor:  and 
an  estate,  so  descending  to  the  heir,  is  in  law  called  the  inheritance. 

The  doctrine  of  descents,  or  law  of  inheritances  in  fee-simple, 
is  a  point  of  the  highest  importance;  and  is  indeed  the  principal 
object  of  the  laws  of  real  property  in  England.  All  the  rules  relating 
to  purchases,  whereby  the  legal  course  of  descents  is  broken  and 
altered,  perpetually  refer  to  this  settled  law  of  inheritance,  as  a 
datum  or  first  principle  universally  known,  and  upon  which  their 
subsequent  limitations  are  to  work.  Thus  a  gift  in  tail,  or  to  a  man 
and  the  heirs  of  his  body,  is  a  limitation  that  cannot  be  perfectly 
understood  without  a  previous  knowledge  of  the  law  of  descents 
in  fee-simple.  One  may  well  perceive  that  this  is  an  estate  confined 
in  its  descent  to  such  heirs  only  of  the  donee,  as  have  sprung  or 
shall  spring  from  his  body;  but  who  those  heirs  are,  whether  all 
his  children  both  male  and  female,  or  the  male  only,  and  (among 
the  males)  whether  the  eldest,  youngest,  or  other  son  alone,  or  all 
the  sons  together,  shall  be  his  heirs;  this  is  a  point  that  we  must 
result  back  to  the  standing  law  of  descents  in  fee-simple  to  be  in- 
formed of. 

Extracts  from  Blackstone,  Commentaries,  II,  208-234.2 

The  nature  and  degrees  of  kindred  being  thus  in  some  measure 
explained,  I  shall  next  proceed  to  lay  down  a  series  of  rules  or  canons 

1  Holmes,  Common  Law,  Lect.  X;  Maine,  Ancient  Law,  Chaps.  VI,  VII,  and 
Sir  Frederick  Pollock's  Notes  M  and  N. 

^  These  canons  have  been  superseded  or  much  altered  by  legislation  in  all 
jurisdictions.     The  details  of  this  legislation  vary  greatly. 


620  PROPERTY 

of  inheritance,  according  to  which,  estates  are  transmitted  from 
the  ancestor  to  the  heir;  together  with  an  explanatory  comment, 
remarking  their  original  and  progress,  the  reasons  upon  which  they 
are  founded,  and  in  some  cases  their  agreement  with  the  laws  of 
other    nations. 

I.  The  first  rule  is,  that  inheritances  shall  lineally  descend  to  the 
issue  of  the  person  who  last  died  actually  seised  in  infinitum:  but 
shall  never  lineallv  ascend. 


II.    A  second  general  rule  or  canon  is,  that  the  male  issue  shall  be 
admitted  before  the  female. 


III.  A  third  rule  or  canon  of  descent  is  this:  that  where  there 
are  two  or  more  males,  in  equal  degree,  the  eldest  only  shall  inherit; 
but  the  females  all  together. 

As  if  a  man  hath  two  sons,  Matthew  and  Gilbert,  and  two 
daughters,  Margaret  and  Charlotte,  and  dies;  Matthew,  his  eldest 
son,  shall  alone  succeed  to  his  estate,  in  exclusion  of  Gilbert,  the 
second  son,  and  both  the  daughters;  but,  if  both  the  sons  die  with- 
out issue  before  the  father,  the  daughters,  Margaret  and  Charlotte, 
shall  both  inherit  the  estate  as  coparceners. 

IV.  A  fourth  rule,  or  canon  of  descents  is  this;  that  the  lineal 
descendants  in  infinitum,  of  any  person  deceased,  shall  represent 
their  ancestor;  that  is,  shall  stand  in  the  same  place  as  the  person 
himself  would  have  done,  had  he  been  living. 

Thus  the  child,  grandchild,  or  great  grandchild  (either  male  or 
female)  of  the  eldest  son  succeeds  before  the  younger  son,  and  so  in 
infinitum.  And  these  representatives  shall  take  neither  more  nor 
less,  but  just  so  much  as  their  principals  would  have  done.  As  if 
there  be  two  sisters,  Margaret  and  Charlotte;  and  Margaret  dies, 
leaving  six  daughters;  and  then  John  Stiles,  the  father  of  the  two 
sisters,  dies  without  other  issue;  these  six  daughters  shall  take 
among  them  exactly  the  same  as  their  mother  Margaret  would  have 
done,  had  she  been  living;  that  is,  a  moiety  of  the  lands  of  John 
Stiles  in  coparcenary:  so  that,  upon  partition  made,  if  the  land  be 
divided  into  twelve  parts,  thereof  Charlotte  the  surviv  ng  sister 
shall  have  six,  and  her  six  nieces,  the  daughters  of  Margaret,  one 
apiece. 


SUCCESSION  G21 

This  taking  by  representation  is  called  succession  in  stirpes, 
according  to  the  roots;  since  all  the  branches  inherit  the  same  share 
that  their  root,  whom  they  represent,  would  have  done. 

V.  A  fifth  rule  is,  that  on  failure  of  lineal  descendants,  or  issue, 
of  the  person  last  seised,  the  inheritance  shall  descend  to  his  col- 
lateral relations,  being  of  the  blood  of  the  first  purchaser;  subject  to 
the  three  preceding  rules. 

Thus  if  Geofifrey  Stiles  purchases  land,  and  it  descends  to  John 
Stiles,  his  son,  and  John  dies  seised  thereof,  without  issue;  whoever 
sue  eeds  to  this  inheritance  must  be  of  the  blood  of  Geoffrey,  the 
first  purchaser  of  this  family.  The  first  purchaser,  perquisitor,  is 
he  who  first  acquired  the  estate  to  his  family,  whether  the  same  was 
transferred  to  him  by  sale  or  by  gift,  or  by  any  other  method,  except 
only  that  cf  descent. 

VI.  A  sixth  rule  or  canon  therefore  is,  that  the  collateral  heir  of 
the  person  last  seised  must  be  his  next  collateral  kinsman  of  the 

whole  blood. 


VII.  The  seventh  and  last  rule  or  canon  is,  that  in  collateral 
inheritances  the  male  stocks  shall  be  preferred  to  the  female  (that 
is,  kindred  derived  from  the  blood  of  the  male  ancestors,  however 
remote,  shall  be  admitted  before  those  from  the  blood  of  the  female 
however  near),  -^unless  where  the  lands  have,  in  fact,  descended 
from  a  female. 

Thus  the  relations  on  the  father's  side  are  admitted  hi  infinitum, 
before  those  on  the  mother's  side  are  admitted  at  all ;  and  the  rela- 
tions of  the  father's  father,  before  those  of  the  father's  mother;  and 
so  on. 

Smith,  Personal  Property  (2  ed.)  107-108. 

The  administration  of  the  property  of  an  intestate  is  based  upon 
the  doctrine  that  his  death  was  an  abandonment  cf  title,  and  that 
his  personalty  thereupon  became  bona  vacantia,  passing  to  the 
sovereign  as  the  parens  patriae,  or  general  trustee  of  the  realm.  The 
legal  title  vests  in  the  crown;  the  equitable  title  in  decedent's 
creditors  and  next  of  kin. 

The  same  doctrine  prevails  in  the  American  States,  substituting 
"government"  for  "king"  or  "crown,"  and,  as  a  necessary  sequence, 


622  PROPERTY 

intermediate  the  death  of  intestate  and  the  issuance  of  letters  of 
administration,  the  legal  title  to  his  personal  property  \'ests  in  the 
government  in  trust. 

There  are  cases,  however,  holding  that  after  the  death  of  the 
intestate  his  personal  property  may  be  considered  in  abeyance  till 
administration  granted,  and  is  then  vested  in  the  administrator 
by  relation  to  the  time  of  decedent's  death.  .  .  True,  on  the  ap- 
pointment of  an  administrator,  the  legal  title  passes  to  him  by  oper- 
ation of  law,  and  relates  back  to  the  death  of  the  intestate  for  the 
purposes  of  securing  the  estate,  and  protecting  persons  dealing  with 
parties  entitled  to  administration.  The  administrator  may  maintain 
an  action  for  an  unredressed  tortious  injury  to,  or  conversion  of,  the 
property  of  tha  estate  prior  to  his  appointment.  Yet  the  want  of 
present  adequate  protection  intermediate  his  appointment  and  the 
death  of  the  intestate,  might  result  in  irreparable  injury  to  the  estate. 

While  the  legal  title  to  the  intestate's  personal  property  is  in  the 
administrator  as  trustee,  so  that  for  the  purposes  of  administration 
he  may  sell  the  same  and  give  a  good  title  to  the  purchaser,  the  next 
of  kin  have  a  vested  interest  in  the  surplus  of  the  estate,  after  the 
payment  of  the  debts. 

The  appointment,  powers,  and  duties  of  an  administrator,  and 
the  distribution  of  intestate's  personal  property,  are  generally 
regulated  by  statute;  and  the  rules  of  the  common  law  are  more  or 
less  modified  in  most,  if  not  all,  of  the  American  States. 

Blackstone,  Commentaries,  II,  374-375. 

By  the  common  law  of  England  since  the  conquest,  no  estate, 
greater  than  for  term  of  years,  could  be  disposed  of  by  testament; 
excei)t  only  in  Kent,  and  in  some  ancient  burghs,  and  a  few  particu- 
lar manors,  where  their  Saxon  immunities  by  special  indulgence 
subsisted.  And  though  the  feudal  restraint  on  alienations  by  deed 
vanished  very  early,  yet  tiiis  on  wills  continued  for  some  centuries 
after:  from  an  apprehension  of  infirmity  and  imposition  on  the 
testator  in  extremis,  which  made  such  devises  suspicious.  Besides, 
in  devises  there  was  wanting  that  general  notoriety,  and  public 
designation  of  the  successor,  which  in  descents  is  apparent  to  the 
neighborhood,  and  which  the  simplicity  of  the  common  law 
always  required  in  every  transfer  and  new  acquisition  of  property. 

Statute  of  Wills,  32  Henry  VIII,  c.  1. 

§  1.  That  all  and  every  person  and  persons,  having  or  which  here- 
after shall  have,  any  manors,  lands,  tenements,  or  hereditaments, 


SUCCESSION  623 

holdcn  in  soccage,  or  of  the  nature  of  soccage  tenure,  and  not  having 
any  manors,  lands,  tenements  or  hereditaments,  holden  of  the  King 
our  sovereign  lord  by  knights  service,  by  soccage  tenure  in  chief, 
or  of  the  nature  of  soccage  tenure  in  chief,  nor  of  any  other  person 
or  persons  by  knights  service,  from  he  twentieth  day  of  July  in  the 
year  of  our  Lord  God  MDXL.,  shall  have  full  and  free  liberty, 
power  and  authority  to  give,  dispose,  will  and  devise,  as  well  by 
his  last  will  and  testament  in  writing,  or  otherwise  by  any  act  or 
acts  lawfully  executed  in  his  life,  all  his  said  manors,  lands,  tene- 
ments or  hereditaments,  or  any  of  them,  at  his  free  will  and  pleasure; 
any  law,  statute  or  other  thing  heretofore  had,  made  or  used  to  the 
contrary  notwithstanding. 

§  2.  And  all  and  every  person  and  persons,  ha\ing  manors,  lands, 
tenements  or  hereditaments,  holden  of  the  King  our  sovereign  lord, 
his  heirs  or  successors,  in  soccage,  or  of  the  nature  of  soccage  tenure 
in  chief,  and  having  any  manors,  lands,  tenements  or  hereditaments, 
holden  of  any  other  person  or  persons  in  soccage,  or  of  the  nature 
of  soccage  tenure,  and  not  having  any  manors,  lands,  tenements 
or  hereditaments,  holden  of  the  King  our  sovereign  lord  by  knights 
service,  nor  of  any  other  lord  or  person  by  like  service,  from  the 
twentieth  day  of  July  in  the  said  year  of  our  Lord  God  MDXL., 
shall  ha\e  full  and  free  liberty,  power  and  authority  to  give,  will, 
dispose  and  devise,  as  well  by  his  last  will  and  testament  in  writing, 
or  otherwise,  by  any  act  or  acts  lawfully  executed  in  his  life,  all 
his  said  manors,  lands,  tenements  and  hereditaments,  or  any  of  them, 
at  his  free  will  and  pleasure;  any  law,  statute,  custom  or  other 
thing  heretofore  had,  made  or  used  to  the  contrary  notwithstanding. 

§  3.  Saving  alway  and  reserving  to  the  King  our  sovereign  lord, 
his  heirs  and  successors,  all  his  right,  title  and  interest  of  primer 
seisin  and  reliefs,  and  also  all  other  rights  and  duties  for  tenures  in 
soccage,  or  of  the  nature  of  soccage  tenure  in  chief,  as  heretofore 
hath  been  used  and  accustomed,  the  same  manors,  lands,  tenements 
or  hereditaments  to  be  taken,  had  and  sued  out  of  and  from  the 
lands  of  his  Highness,  his  heirs  and  successors,  by  the  person  or 
persons  to  whom  any  such  manors,  lands,  tenements  or  heredit- 
aments shall  be  disposed,  willed  or  devised,  in  such  and  like  manner 
and  form,  as  hath  been  used  by  any  heir  or  heirs  before  the  making 
of  this  statute;  and  saving  and  reserving  also  lines  for  alienations 
of  such  manors,  lands,  tenements  or  hereditaments  holden  of  the 
King  our  sovereign  lord  in  soccage,  or  of  the  nature  of  soccage 
tenure  in  chief,  whereof  there  shall  be  any  alteration  of  freehold  or 
inheritance,  made  by  will  or  otherwise,  as  is  aforesaid. 


624  PROPERTY 

Blackstone,  Commentaries,  II,  510-513. 

The  executor  or  administrator  is  to  make  an  inventory  of  all  the 
goods  and  chattels,  whether  in  possession  or  action,  of  the  deceased ; 
which  he  is  to  deliver  in  to  the  ordinary  upon  oath,  if  thereunto 
lawfully  required. 

He  is  to  collect  all  the  goods  and  chattels  so  inventoried ;  and  to 
that  end  he  has  very  large  powers  and  interests  conferred  on  him  by 
law;  being  the  representative  of  the  deceased,  and  having  the  same 
property  in  his  goods  as  the  principal  had  when  living,  and  the  same 
remedies  to  recover  them.  And  if  there  be  two  or  more  executors, 
a  sale  or  release  by  one  of  them  shall  be  good  against  all  the  rest ; 
but  in  case  of  administrators  it  is  otherwise.  Whatever  is  so  recov- 
ered, that  is  of  a  salable  nature  and  may  be  converted  into  ready 
money,  is  called  assets  in  the  hands  of  the  executor  or  administrator; 
that  is  sufficient  or  enough  (from  the  French  assez)  to  make  him 
chargeable  to  a  creditor  or  legatee,  so  far  as  such  goods  and  chattels 
extend.  Whatever  assets  so  come  to  his  hands  he  may  convert 
into  ready  money,  to  answer  the  demands  that  may  be  made  upon 
him :  which  is  the  next  thing  to  be  considered :  for, 

The  executor  or  administrator  must  pay  the  debts  of  the  deceased. 
In  payment  of  debts  he  must  observe  the  rules  of  priority;  other- 
wise, on  deficiency  of  assets,  if  he  pays  those  of  a  lower  degree  first, 
he  must  answer  those  of  a  higher  out  of  his  own  estate.  And,  first, 
he  may  pay  all  funeral  charges,  and  the  expense  of  proving  the  will, 
and  the  like.  Secondly,  debts  due  to  the  king  on  record  or  specialty. 
Thirdly,  such  debts  as  are  by  particular  statutes  to  be  preferred  to 
all  others:  as  the  forfeitures  for  not  burying  in  woolen,  money  due 
upon  poor  rates,  for  letters  to  the  post-office,  and  some  others. 
Fourthly,  debts  of  record;  as  judgments,  docketed  according  to 
the  statute  4  and  5  W.  and  M.  c.  20,  statutes  and  recognizances. 
Fifthly,  debts  due  on  special  contracts;  as  for  rent  (for  which  the 
lessor  has  often  a  better  remedy  in  his  own  hands  by  distraining), 
or  upon  bonds,  covenants,  and  the  like,  under  seal.  Lastly,  debts 
on  simple  contracts,  viz. :  upon  notes  unsealed  and  verbal  promises. 
Among  these  simple  contracts,  servants'  wages  are  by  some  with 
reason  preferred  to  any  other:  and  so  stood  the  ancient  law,  accord- 
ing to  Bracton  and  Fleta,  who  reckon  among  the  first  debts  to  be 
paid,  servitia  servientium  et  stipendia  famulorum.  Among  debts 
of  equal  degree,  the  executor  or  administrator  is  allowed  to  pay 
himself  first,  by  retaining  in  his  hands  so  much  as  his  debt  amounts 
to.     But  an  executor  of  his  own  wrong  is  not  allowed  to  retain :  for 


SUCCESSION  625 

that  would  tend  to  encourage  creditors  to  strive  who  should  first 
take  possession  of  the  goods  of  the  deceased ;  and  would  besides  be 
taking  ad\'antage  of  his  own  wrong,  which  is  contrary  to  the  rule 
of  law.  If  a  creditor  constitutes  his  debtor  his  executor,  this  is  a 
release  or  discharge  of  the  debt,  whether  the  executor  acts  or  not; 
pro\'idcd  there  be  assets  sufficient  to  pay  the  testator's  debts:  for 
though  this  discharge  of  the  debt  shall  take  place  of  all  legacies,  yet 
it  were  unfair  to  defraud  the  testator's  creditors  of  their  just  debts 
by  a  release  which  is  absolutely  voluntary.  Also,  if  no  suit  is  com- 
menced against  him,  the  executor  may  pay  any  one  creditor  in 
equal  degree  his  whole  debt,  though  he  has  nothing  left  for  the  rest : 
for,  without  a  suit  commenced,  the  executor  has  no  legal  notice  of 
the  debt. 

When  the  debts  are  all  discharged,  the  legacies  claim  the  next 
regard  ;  which  are  to  be  paid  by  the  executor  so  far  as  his  assets  will 
extend ;  but  he  may  not  give  himself  the  preference  herein,  as  in  the 
case  of  debts. 

A  legacy  is  a  bequest,  or  gift,  of  goods  and  chattels  by  testament; 
and  the  person  to  whom  it  was  given  is  styled  the  legatee  which 
every  person  is  capable  of  being,  unless  particularly  disabled  by  the 
common  law  or  statutes,  as  traitors,  papists,  and  some  others.  This 
bequest  transfers  an  inchoate  property  to  the  legatee ;  but  the  legacy 
is  not  perfect  without  the  assent  of  the  executor:  for  if  I  have  a 
general  or  pecuniary  legacy  of  £100,  or  a  specific  one  of  a  piece  of 
plate,  I  cannot  in  either  case  take  it  without  the  consent  of  the 
executor.  For  in  him  all  the  chattels  are  vested;  and  it  is  his  busi- 
ness first  of  all  to  see  whether  there  is  a  sufficient  fund  left  to  pay 
the  debts  of  the  testator:  the  rule  of  equity  being,  that  a  man  must 
be  just,  before  he  is  permitted  to  be  generous;  or,  as  Bracton 
expresses  the  sense  of  our  ancient  law,  "de  bonis  defnncti  prima  dedii- 
cenda  sunt  ea  quae  sunt  necessitatis,  et  postea  quae  sunt  utilitatis, 
et  ultimo  quae  sunt  voluntatis.'"  And  in  case  of  a  deficiency  of 
assets,  all  the  general  legacies  must  abate  proportionably,  in  order 
to  pay  the  debts;  but  a  specific  legacy  (of  a  piece  of  plate,  a  horse, 
or  the  like)  is  not  to  abate  at  all,  or  allow  any  thing  by  way  of 
abatement,  unless  there  be  not  sufficient  without  it.  Upon  the 
same  principle,  if  the  legatees  had  been  paid  their  legacies,  they  are 
afterwards  bound  to  refund  a  ratable  part,  in  case  debts  come  in, 
more  than  sufficient  to  exhaust  the  residuum  after  the  legacies 
paid.  And  this  law  is  as  old  as  Bracton  and  Fleta,  who  tell  us,  ^'si 
pliira  sint  debita,  vel  plus  legatu/m  fuerit,  ad  quae  catalla  dcfuncti  non 
sufficiantfiat,  ubique  defalcatio,  excepto  regis  privilegio.'' 


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